Tag Archives: Water Quality

The Battle Over Riparian Buffers

June 22, 2015. An earlier post  described  changes to state  buffer rules proposed in House Bill 760 (Regulatory Reform Act of 2015).  Last week, the North Carolina Senate put its own set of buffer changes into House Bill 44 (Local Government Regulatory Reform). The buffer provisions added by the Senate look very different from those approved by the House in H 760.

First, the purpose of  riparian buffer rules. In several areas of the state,  water quality rules limit clearing, grading and development activity within 50 feet of  rivers, lakes and streams. For the most part, the state buffer rules responded to water pollution problems caused by excess nutrients.   A  number of large fish kills,  including a 1995  fish kill in the Neuse River estuary that lasted more than three months and killed tens of millions of fish,  prompted  nutrient rules for the lower Neuse River and the Tar-Pamlico River basin.  The rules required stream buffers to  reduce  nutrient runoff and also put stricter limits on wastewater discharges of nitrogen and phosphorus.  More recently, similar nutrient problems led the Environmental Management Commission (EMC) to adopt  buffer rules for the  Falls Lake  and Jordan Lake watersheds.  State buffer rules also apply to the main stem of the Catawba River  and in the  Randleman Reservoir watershed to prevent development of nutrient problems. The rules  require a 50-foot vegetated buffer —  Zone 1  (the first 30 feet back from the water) has undisturbed natural vegetation;  Zone 2  can be graded and replanted.

In Section 13 of House Bill 44, the Senate proposes to  shrink the riparian buffer required under the Neuse River rules from 50 feet to 30 feet and allow more  disturbance within 30 feet of the water.  The  Senate bill then directs DENR and the Environmental Management Commission  to “implement all other rules adopted by the Commission for the protection and maintenance of existing riparian buffers for nutrient sensitive waters”  in the same way until the beginning of the 2016 legislative session. The implications:

♦ Stream  buffers on waters already stressed by excess nutrients will be significantly narrowed; it isn’t clear whether the narrower buffer will be as effective in reducing polluted runoff.

♦  The Senate provision allows grading, clearing and revegetation of the entire 30-foot buffer.

♦  Changes to the Neuse River buffer rule would be permanent, but  changes to buffer rules on other nutrient sensitive waters expire at the beginning of the next legislative session in May 2016.  (Although nothing in the bill suggests the Senate actually  intends to allow those buffer rules to return to their current form  in 2016.)

♦  Whatever happens in 2016, temporarily  reducing riparian buffer requirements on nutrient sensitive waters could set off a frenzy of buffer clearing during the one year interim.

♦ Since the provision only applies to  buffer rules adopted by the EMC  “for nutrient sensitive waters”,  buffer rules adopted for  Randleman Reservoir and  the main stem of the Catawba River  would be unchanged.

The Senate  and  House also differ on the method for measuring riparian buffers on coastal wetlands. The Senate provision (in Section 14 of House Bill 44) requires all coastal wetlands  — even those regularly flooded on the tides — to be considered  part of the riparian buffer.  The change would potentially allow clearing, grading and development activity up to the edge of a regularly flooded  coastal wetland.  H 760 requires the riparian buffer on a coastal wetland to be measured from the normal water level,  likely preventing use of regularly flooded wetlands as the buffer.

The House quickly voted not to accept the Senate changes to House Bill 44; the bill  has been sent to a conference committee to work out the differences.  The Senate has not yet taken up  H 760.  Legislative conferees can sometimes color outside the lines, but as things now stand the choice seems to be between:  1. Maintaining existing 50-foot riparian buffer requirements, but exempting a large number of  properties from the rules entirely (the House proposal in H 760);  or 2. Reducing the riparian buffer from 50 feet to 30 feet on nutrient sensitive waters and allowing grading, clearing and revegetation in the entire buffer  (the Senate proposal in H 44).

Note on Goose Creek: Buffer rules for the Goose Creek watershed protect habitat for a federally listed endangered species. The rules, which were negotiated with the U.S. Fish and Wildlife Service,  require broader buffers than those on nutrient sensitive waters. The Senate buffer provisions in H 44 do not affect the Goose Creek rules.  The buffer exemption in H 760 could apply in the  Goose Creek watershed, which may undo the negotiated agreement with U.S. Fish and Wildlife.

Reforming Riparian Buffers Out of Existence

May 7, 2015.  Yesterday, the N.C. House approved House Bill 760 (Regulatory Reform Act of 2015) after adopting several amendments. House Bill 760 has  attracted a lot of media attention because of  the renewable energy provisions.  Less attention has been paid to part of the bill that will significantly weaken use of riparian buffers to reduce water pollution.

An earlier post  described the original riparian buffer provisions in House Bill 760. By amendment,  the House changed the provision on measurement of riparian buffers adjacent to coastal wetlands.  The new language requires the buffer to be measured from the normal water level, recognizing that some coastal wetlands regularly flood on the tides. The bill continues to have confusing language on  local government authority  to adopt riparian buffer ordinances outside of the river basins and watersheds covered by state buffer rules. Amendments  improved those provisions a bit,  but I am not sure even the amended bill  allows for all of the circumstances in which a local government may need to adopt a buffer ordinance to meet state and federal environmental standards.

But in what may be the most under-discussed section  of House Bill 760, the bill  still creates an exceptionally broad exemption from riparian buffer rules that apply in the state’s nutrient impaired river basins and watersheds. None of the amendments  to House Bill 760 narrowed the scope of the  buffer exemption.  In  areas covered by state nutrient sensitive waters (NSW)  buffer rules, the bill exempts all tracts of land platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.) The only condition on the exemption:

Other than the applicable buffer rule, the use of the tract complies with either of the following:

a. The rules and other laws regulating and applicable to that tract on the effective date for the applicable buffer rule set out in subsection (a) of this section.

b.The current rules, if the application of those rules to the tract was initiated after the effective date for the applicable buffer rule by the unit of local government with jurisdiction over the tract and not at the request of the property owner.

The conditions  don’t narrow the exemption  much — if at all.  Enforcing (a)  requires someone in the present to  determine whether use of the property complies with laws and rules in effect as much as 15 years ago.  And (b) appears to be the “Get Out of Jail Free” card that allows a property owner to claim the exemption based on meeting all current local ordinances other than the buffer rule. Unless  I am missing something, the property owner can just opt out of the riparian buffer requirement as long as a development project meets other current standards.

The exemption applies whether the riparian buffer rules are enforced by the state or by a local government with  delegated authority to enforce the  buffer requirements.  The exemption also seems to apply to both undeveloped properties and to properties already developed and currently in compliance with the buffer requirements.  If so, owners of developed properties would be free to clear vegetation and create new encroachments in the buffer. (Failure of the bill to distinguish between developed and undeveloped properties in applying the exemption criteria may have led to some unintended consequences —  although the exemption language is so aggressively broad,  I am not sure that is the case.)

The buffer  rules are  part of  broader  water quality restoration plans designed to meet  federal Clean Water Act requirements. The Clean Water Act requires the state  to adopt a Total Maximum Daily Load (TMDL) —  a cap —  for any pollutant causing impaired water quality. A number of state  water bodies, including the Neuse River estuary, Falls Lake and Jordan Reservoir,   have had impaired water quality due to excess nitrogen and phosphorus.   For those river basins and watersheds, the nutrient management rules provide the underpinning  for  TMDLs that set nitrogen and phosphorus reduction targets.

North Carolina ‘s longstanding  policy has been to share the burden of pollution reduction among all of the major nutrient sources so the rules include tighter controls on wastewater dischargers; measures to reduce the amount of nitrogen and phosphorus leaving agricultural lands; and stormwater controls and riparian buffer requirements to reduce nutrient runoff from developed areas.  Each set of nutrient management rules reflects a long negotiation  involving  all of the  interests  affected — local governments, agriculture, landowners, real estate developers, environmental organizations — to balance the pollution reduction burden.

The House Bill 760 buffer exemption has the potential to upset the balance of the nutrient management plans and jeopardize the state’s ability to meet nutrient reduction targets in the TMDLs.  Understanding the impact of the exemption will require the answers to a number of questions yet to be asked or answered in the legislative debate:

1.  How many properties in each nutrient sensitive  river basin or watershed potentially qualify for the exemption and what percentage of riparian area  could be affected?

2.  How much nutrient reduction has the Division of Water Resources credited to protection of the riparian buffers in the approved TMDLs?

3.   Would the exemption affect the state’s ability to meet nutrient reduction goals for these impaired water bodies?

4.  Would the state have to ask for more nutrient reductions from other sources (such as wastewater treatment plants and agricultural operations) to make up the difference?

The bill now goes to the Senate, which has more often been the starting point for legislation to  limit use of stormwater controls and riparian buffers to restore water quality in impaired waters.

2015 Environmental Bills — Part II

April 17, 2015. A continuation of the previous post. Not a complete list, but hopefully  most of the significant bills.

Amend Environmental Laws.  In the category of you just can’t have too many — there are actually three “Amend Environmental Laws” bills this session (so far).  As noted in the previous post, House Bill 157 (Amend Environmental Laws) has already been enacted into law and House Bill 593 (Amend Environmental Laws-2)  amends  laws allowing reimbursement for third-party damage claims as a result of leaking petroleum storage tanks. I missed House Bill 576 (Amend Environmental Laws-1); at the moment, the bill  amends  solid waste laws to allow  the white goods tax (currently used by local governments to manage discarded refrigerators and other large appliances) to also be used for programs to manage discarded electronic devices.    Amend Environmental Laws-1 may also pick up additional provisions as it moves through committee.

Contaminated Sites. House Bill 748 (Establish Contamination Source Removal/Disposal Bd) creates a new full-time  (salaried) board to take over DENR’s responsibility for cleanup of contamination at pre-1983 landfills and other contaminated sites. The “pre-1983 landfills” are unlined waste disposal  sites — in some cases,   simply  dumps –that stopped operating before 1983 to avoid having to comply with federal standards for waste disposal facilities.  Many have groundwater contamination.  A 2007  state law  gave DENR responsibility for assessing and remediating the sites. Many of the landfills had been operated by local governments, so the 2007 legislation freed local governments of the potential environmental liability in return for a state solid waste disposal tax to fund cleanup.  House Bill 748  expresses concern about the slow pace of remediation.  It will be interesting to get more of the back story on the bill.  The concern may be as much about unspent funds earmarked for the cleanup as it is about unremediated contamination;  a  pot of money always attracts attention.  Reality is that contaminated sites require a  lot of assessment work before actual cleanup can begin.  Most  state-funded remediation programs have had a slow start up before making significant outlays for remediation.

Also,  a note that  House Bill 639 (Risk-based Remediation Amends) proposes the same amendments to remediation laws that appear in the Senate regulatory reform bill. You can find a description of those provisions in an earlier post.

Fracking. House Bill 773 would strengthen  requirements for public disclosure of chemicals used in hydraulic fracturing fluid.

Riparian Buffers. House Bill 760 is the  House regulatory reform bill.  The environmental provisions include significant changes to state laws allowing use of riparian buffers to protect water quality. It isn’t clear exactly how broad the bill’s restrictions on local government buffer ordinances are intended to be.  The bill amends a law written to allow  state delegation of riparian buffer programs under the nutrient sensitive waters (NSW) rules to local government, but  some of the bill language could be interpreted to prohibit local adoption of riparian buffer ordinances for any other purpose:

Units of local government may impose restrictions upon the use of riparian areas as defined in 15A NCAC 02B.0202 only within river basins where riparian buffers are required by the State.

Local riparian buffer ordinances  are sometimes adopted in response to other  state/federal water quality mandates  — such as Phase II stormwater permit conditions, water supply watershed regulations and endangered species management plans. So a local buffer ordinance may be needed to meet a water quality standard or  permit condition, but  not specifically required under state rules applicable to the entire river basin.  Assuming  the bill did not intend to prohibit use of riparian buffer ordinances to meet  other state and federal water quality mandates, it would be helpful to make that clear.

In  areas covered by the NSW buffer rules, the bill exempts residential lots platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.)  The buffer  rules are  part of  broader  water quality strategies designed to meet  federal Clean Water Act requirements. The Clean Water Act requires the state  to adopt a Total Maximum Daily Load (TMDL) –in effect, a cap —  for any pollutant causing impaired water quality. A number of state  water bodies, including the Neuse River and Falls Lake,  have impaired water quality due to excess nutrients  — particularly nitrogen and phosphorus.   The nutrient management rules provide the regulatory  underpinning  for  TMDLs that set nitrogen and phosphorus reduction targets for  those  rivers and lakes.    The rules include  riparian buffer requirements as a critical  tool in reducing the amount of nitrogen and phosphorus that runs off the land into surface waters. One question may be whether such a broad exemption from the buffer rules will allow the state to meet the federally-approved TMDLs.

The bill would also require that riparian buffers on shorelines bordered by coastal wetlands or marshland be measured from the waterward edge of the wetland. The term “coastal wetland” includes both wetlands that regularly flood on the tides and wetlands that flood on wind tides and seasonal high tides.  Under the provision, the “buffer” would often consist of wetlands with a frequent, direct  connection to coastal waters;  in some cases,  the buffer would effectively be in the water. The change would seem to defeat the purpose of having a buffer to allow polluted runoff to infiltrate through the soil rather than go directly into the water.

Stormwater. On the face of it,  House Bill 141 (Stormwater/Flood control) authorizes cities to use existing stormwater management programs to address flood risk by purchasing properties at high risk of flooding, elevating existing structures, and retrofitting  structures to reduce flood risk. The bill seems  intended to allow  cities in more populated counties to expand the purpose of existing stormwater programs to include flood management as well as water quality protection.  (The bill would limit the new authority to cities in a county with a population of 910,000 or greater and at least one city with a population of 500,000 or greater.)  One possible pitfall  — the bill could be interpreted as limiting the authority of other North Carolina towns and cities  to take similar actions through flood hazard mitigation projects.  For example, the small coastal town of Belhaven  has done a major flood hazard mitigation project  to elevate structures in areas repeatedly flooded due to hurricanes.   House Bill 141 may need to be clarified to avoid undermining cities and towns’  existing authority  to reduce flood hazards.

N.C. Coal Ash Bill Becomes Law

September 24, 2014. On September 20, Senate Bill 729 (the Coal Ash Management Act) became law without the Governor’s signature. Governor Pat McCrory had expressed concern that a provision in the bill giving legislators the majority of appointments to the new Coal Ash Management Commission violated the constitutional doctrine of separation of powers. Rather than  veto the bill, the governor allowed the bill to become law without his signature and signaled an intent to ask the N.C. Supreme Court for an advisory opinion on the constitutionality of the appointments provision.

In the meantime,  Senate Bill 729  — now Session Law 2014-122 — makes a number of  immediate changes to state law  and sets in motion a  15-year  process for remediating and then closing thirty-three existing coal ash impoundments. An earlier post provided an overview of the  final bill and now attention will turn to implementation.

 NEAR TERM 

  • Effective October 1, 2014 the law prohibits utilities from building new impoundments or expanding existing impoundments for disposal of coal ash.
  • Also effective October 1, 2014, the law  prohibits use of impoundments at closed electric generating facilities for coal ash disposal. The provision prevents a utility from transporting coal ash from an active generation plant to a closed facility for disposal in an impoundment.
  • By October 1, 2014, the utilities must submit a survey to the Department of Environment and Natural Resources (DENR) identifying all drinking water wells within 1/2 mile down-gradient of an impoundment.
  • The law requires the utilities to submit groundwater assessment plans  and  maps showing discharges to surface waters (both permitted and unpermitted) for all 33 impoundments by December 31,  2014.  The maps and groundwater assessment plans represent the first in a series of steps leading to remediation of  groundwater contamination around the impoundments and elimination of unpermitted discharges to surface waters.
  • S.L. 2014-122 sets much more stringent standards for use of coal ash in large structural fill projects and puts a moratorium on smaller structural fill projects to study appropriate standards for those projects.  (“Structural fill” projects involve the use of coal combustion residuals as fill material to level a construction site, build up a road bed, or otherwise change site elevation before construction.) The new standards include setbacks from surface waters and drinking water wells; a requirement for synthetic liners and a leachate collection system; a four-foot separation between the lowest level of fill and groundwater; financial assurance; and standards for closure.
  • Amendments to the state Dam Safety Act require dam owners to  prepare an emergency action plan for each high and intermediate risk impoundment. (The provision applies to all impoundments regulated under the Dam Safety Act and not  just coal ash impoundments.)
  • Dam Safety Act amendments also set minimum requirements for inspection of coal ash impoundment by the utilities   (weekly and following storms) and by DENR  (annually).
  • A new fee imposed on electric utilities that own coal ash impoundments will fund regulatory activities at DENR and the new Coal Ash Management Commission. The law authorizes use of the revenue to create  5 positions in the Department of Public Safety to support the Coal Ash Management Commission and 25 new positions in DENR.
  • S.L. 2014-122 amends state law  to require notice to DENR of any wastewater spill to  surface waters  as soon as practicable, but no more than 24 hours after the spill reaches surface waters.  The law also shortens the time allowed to provide notice to the public  from 48 hours to 24 hours.
  •  S.L. 2014-122 repeals most of a controversial 2013 regulatory reform provision on groundwater remediation by eliminating statutory language that: 1.  created a presumption that the groundwater compliance boundary around a waste disposal site should be at the property boundary;  and 2. limited DENR’s ability to require measures within the compliance boundary to control groundwater contamination. A provision in the same section of  S.L. 2014-122  created a new controversy, however, by reversing a recent superior court decision interpreting state groundwater remediation rules. (For an explanation of the controversy, see the earlier post.)
  • The law creates new civil and criminal penalties for violation of laws related to management of coal ash.

The law also requires a number of actions over the next year intended to  expand beneficial uses of coal ash. The most unusual provision requires the electric utilities  to issue a request for proposals by December 31, 2014 for:

(i) the conduct of a market analysis for the concrete industry and other industries that might beneficially use coal combustion residuals and coal combustion products; (ii) the study of the feasibility and advisability of installation of technology to convert existing and newly generated coal combustion residuals to commercial-grade coal combustion products suitable for use in the concrete industry and other industries that might beneficially use coal combustion residuals; and (iii) an examination of all innovative technologies that might be applied to diminish, recycle or reuse, or mitigate the impact of existing and newly generated coal combustion residuals.

LONGER  TERM

S.L. 2014-122 gives  the impoundments at four coal-fired plants (Dan River Steam Station, Riverbend Steam Station, Asheville Steam Electric Generating Plant and the Sutton Plant) priority for final closure. The law then directs DENR to classify  the other 10 impoundment sites in the state based on risk by the end of 2015. Under  the law,  final closure of impoundments classified as high or intermediate risk will require removal of all coal ash for disposal in a lined industrial landfill (on or off-site) or for  beneficial reuse. Impoundments classified as low risk  have the additional closure option of capping the coal ash in place as long as the closure plan includes measures that will prevent groundwater contamination beyond the compliance boundary.

S.L. 2014-122 sets final closure deadlines based on the risk classification — December 31, 2019 for high risk impoundments; December 31, 2024 for intermediate risk impoundments and December 31, 2029 for low risk impoundments.

OPPORTUNITIES AND PITFALLS

S.L. 2014-122 marks a real and significant change in environmental policy — forcing a transition away from use of wet impoundments for coal ash disposal and toward more protective methods of disposal and safe reuse.   In support of that policy decision, the law provides statutory timelines  for assessment, remediation and final closure of all 33 impoundments and  new resources for state oversight.

Even with resources to implement S.L. 2014-122, it will be difficult to hold to the timelines in the law without an ongoing commitment on the part of the General Assembly, DENR and the electric utilities. Any number of bureaucratic and technical problems could delay or derail implementation of the law.  (The thirty new positions authorized under the bill do not magically appear  when the bill becomes law — getting from legislative authorization of a new position to having a person  on the job  usually  takes months.) The goals of the law won’t be met if the state too easily gives in to unnecessary delays.

Decisions on remediation; classification of impoundments for closure; and approval of closure plans will present a different kind of challenge. There will be an inevitable tension between the utilities’ desire to keep the  cost of compliance  low and the state’s responsibility to protect  groundwater and surface water resources. The bill creates another potential source of tension by giving the new Coal Ash Management Commission  — not DENR — the authority to make final decisions on classification of impoundments and approval of closure plans. The Commission will have a very small staff and the law does not require any commission member to have expertise in  groundwater hydrology or water quality  –  likely to be critical in prioritizing sites for closure and approving closure plans.  With good luck and the right appointments, the arrangement  might work; or it could  lead to  conflict and overly politicized decision-making.

Regulatory Reform 2014

September 23, 2014.  Late last week, Governor Pat McCrory signed Senate Bill 734 (the Regulatory Reform Act of 2014)  on the final day to either sign or veto the bill.  The bill, now Session Law 2014-120, includes both substantive  changes to environmental laws and  amendments to the state Administrative Procedures Act  affecting environmental rule-making and administrative appeals. Below, some of the more significant  environmental provisions; a future post will look at the administrative law changes.

Air Quality: Open burning and fireplaces. Section 24 of Senate Bill  734 eliminates the need for  a state air quality  permit for open burning of leaves, stumps, logs, tree branches, yard trimmings under certain circumstances.  It  also  prohibits a city from banning or limiting open burning of debris in the city’s  1-mile extra-territorial jurisdiction unless the city provides yard waste pickup or access to drop off centers in the area to the same extent provided to residents in the city.  These provisions are the latest in a series of  legislation actions over the last three years to reduce  regulation of open burning.

Section 24(h) prohibits local air pollution control programs and the state from regulating any combustion heater, fireplace, etc. in a private dwelling except as required by federal law. This appears to be a preemptive move; I am not aware of any state or local air quality initiative  to regulate residential fireplaces and heaters.

Coastal Development:  Coastal stormwater;  inlet hazard areas; and permit appeals.

Coastal Stormwater. Section  25 of   Senate Bill  734 extends a  grandfathering provision in the coastal stormwater rule,  15A NCAC 02H .1005,   to expansion of the grandfathered development onto adjoining  property.

Inlet hazard areas. Since ocean Inlets  often move in response to changing nearshore condition and cause  accelerated  shoreline change, state coastal development rules have long put additional density and size limitations on development in  designated inlet hazard areas. In 2012, the General Assembly directed the Coastal Resources Commission (CRC) to study the Cape Fear River Inlet Hazard Area.  Within the past year,  the CRC expanded the review  to all  inlet hazard areas. Although the CRC review has not been completed,   Senate Bill 734 preemptively  removes some coastal shorelines  from existing inlet hazard area designations:

(1)  An inlet hazard area associated with an inlet that has been closed for at least 15 years.  The provision applies only to Mad Inlet in Brunswick County. The inlet originally separated Sunset Beach from Bird Island to the south, but  closed naturally in 1998.  The CRC  had already amended coastal management  rules to remove the Mad Inlet hazard designation earlier this year.

(2)  Inlet hazard area designations that no longer include the current inlet location due to shoreline change.  This provision also applies to Mad Inlet, but it is not clear that the impact will be limited to Mad Inlet. Other inlets have moved due to natural shoreline change or  engineered inlet relocation projects and  a comparison of current inlet locations to the corresponding inlet hazard area will be necessary to fully understand the potential impact of the provision.

(3)  The inlet hazard area surrounding an  inlet providing access to a State Port via a channel maintained by the United States Army Corps of Engineers. This provision eliminates the inlet hazard area designated around the mouth of the Cape Fear River at the entrance to the  Wilmington port,  which now includes part of the Bald Head Island shoreline.  The Village of Bald Head Island had pushed for removal of the inlet hazard area designation.

Shorelines  removed from  an inlet hazard area will be regulated instead under the general standards for  development on ocean and estuarine shorelines.

Coastal Area Management Act (CAMA) Permit Appeals. Section 23 of  the bill  eliminates  the automatic stay of a CAMA permit that has been appealed by a third party.  Under the amended law, a petitioner appealing the issuance of a CAMA permit will have to request an administrative law judge to stay the permit pending appeal. The amendment makes the CAMA appeal statute consistent with stay provisions in the state Administrative Procedures Act, but third parties  seeking to appeal a CAMA permit will continue to face a hurdle that is not imposed on other petitioners  —  the need for a preliminary determination by the CRC that the appeal has merit.

Environmental Permitting. Most permitting programs apply the standards in effect at the time of the permit decision. If  a rule or ordinance  changes during review of a permit application, the project may have to be  modified to meet the new standard.  In those circumstances, Section 16 of Senate Bill 734  now allows the permit applicant to choose whether to construct under the new standard or the old standard. The provision applies to development permits issued under state environmental laws or under  local ordinances. The new law does not define “development permit”, but clearly excludes zoning ordinances from the “permit choice” option.  The provision does not  recognize any exception based on requirements of federal law.

Engineered Plans. Section 29  of Senate Bill 734 makes a number of changes in the way state and local government permit reviewers interact with professional engineers  responsible for  design of a  proposed project. The  legislature’s Environmental Review Commission recommended the provision. See the section on review of engineered plans in an earlier post for more detail and  background on the conflict between PEs and state/local permit reviewers.

Onsite Wastewater Systems: Innovative systems and permitting changes. 

Innovative wastewater systems. Section 28 of Senate Bill  734 changes the law on approval of innovative onsite wastewater systems using polystyrene aggregate as a substitute for the gravel traditionally used in trenches for dispersion lines. “Innovative” systems do not meet established standards for onsite wastewater systems and require approval by the Department of Health and Human Services (DHHS). The new provision prevents DHHS and the Commission for Public Health from conditioning approval of a system using polystyrene synthetic aggregate on using a certain particle or bulk density.  The provision also requires DHHS and the Commission to rescind and reissue any  approval that may have included  those conditions. The legislative record does not  reflect  any  discussion of the density  conditions  — either the reason the conditions had been imposed or the effect that removal of the density  conditions may have on the performance of the wastewater systems.

Permitting. Section 40  expands the current permitting law to  cover ground absorption systems and removes the 5-year limit on a permit issued for installation of an on-site wastewater system. Under the provision, the permit holder would not require a new authorization even  if   standards for those systems have changed.

Parks. Section 31 of the bill allows the Secretary of Environment and Natural Resources to waive the 25 mile per hour speed limit in state parks for special events and  gives  the Commissioner of Agriculture the same authority in state forests. Media reports during the legislative session indicated the waiver had been requested by groups interested in using  a state park for private race events.  See a  report by the Raleigh News and Observer.

Water Quality: Isolated wetlands and stormwater. 

Isolated Wetlands. Section 54  raises the permitting threshold  for disturbance of isolated wetlands.  (See an earlier post for an explanation of the term “isolated wetlands”.) West of Interstate 95 (the unofficial dividing line between eastern and  piedmont/western  N.C. ), the permitting threshold has been raised  from 1/10 acre to 1/3 acre. East of I-95, the permitting threshold has been raised from 1/3 acre to 1 acre.    During the legislative debate, DENR indicated that raising the permitting threshold to 1 acre east of I-95 would effectively eliminate permitting requirements for isolated wetlands in the eastern part of the state. The bill also  reduces  the mitigation ratio for  all wetland impacts from 2:1 to  1:1 and directs DENR to study the definition of isolated wetlands and whether mountain bogs  should be regulated differently  than other isolated wetlands.

Stormwater. Section 45 of Senate Bill 734  reverses  a 2013 regulatory reform. The Regulatory Reform Act of 2013 (Session Law 2013-413)  changed   stormwater  standards to  treat gravel areas as “pervious” and to exclude gravel from the calculation of “built-upon” area on a development site.  Since the amount of built-upon area determines the level of stormwater control required, developers had  pushed for exclusion of gravel areas from the calculation as a way to reduce stormwater management requirements. The 2013  provision  also directed the legislature’s Environmental Review Commission (ERC)  to study state stormwater programs “including how partially impervious surfaces are treated in the calculation of built-upon area under those programs”.

The ERC study group  encountered an unexpected complication — the lack of consensus on  the definition of  “gravel” had  created uncertainty  about implementation of the 2013 provision.   Instead of moving  on to the next reform requested by developers, the ERC  focused  on defining gravel and found that gravel  may not be pervious depending on the  nature of the aggregate material and the underlying substrate.   On recommendation of the ERC,  Section 45 of Senate Bill 734 effectively repeals the 2013 provision and directs the Department of Environment and Natural Resources (DENR)  to contract with N.C. State University for a study of the pervious/impervious qualities of different types of aggregate materials.

Water Supply: Interbasin transfer.  Sec. 37 of Senate Bill  734  extends an expedited interbasin transfer  approval process (originally created for certain coastal counties) to allocation of water from  reservoirs managed by the U.S. Army Corps of Engineers.  The intent may be to speed approval of an  interbasin transfer that would allow the City of Raleigh to take drinking water from Kerr Lake.

Rushing Stormwater

July 26, 2014. House Bill 201 (Building Reutilization for Economic Development Act) left the House as a  bill exempting restored buildings from the most recent state energy efficiency standards. The bill returned from the Senate with the addition of significant changes to state stormwater standards and a new exemption from  environmental review under the state Environmental Policy Act (SEPA). The bill received final House approval on July 24  without review by an  environment committee in either chamber.  The House approved the new measure on a vote of 66-42 and the bill will go to the Governor for signature.

The stormwater amendments   affect  a number  of existing state water quality  programs, including rules for development in water supply watersheds; coastal stormwater rules to protect the quality of shellfish waters; and nutrient management strategies adopted to restore water quality in rivers and reservoirs already degraded by excess nutrients. In the last 20 years,  stormwater controls have become increasingly important in reducing the amount of pollution running off developed areas into rivers, lakes and streams  The  bill raises two questions — 1. Will higher intensity development with significantly reduced stormwater controls be consistent with maintaining  water quality (particularly  in sensitive areas near shellfish waters  and drinking water supplies)? and 2. Are the changes consistent with federal Clean Water Act requirements?

What the stormwater provisions  do:

♦ A new definition of “development” excludes  existing built-on area from the calculation of stormwater requirements.

♦  The bill  prohibits the Environmental Management Commission (EMC)  from requiring private property owners to install new or increased stormwater controls on existing development “except as required by federal law” — a savings clause that will raise more questions than it answers.

Excluding existing development from the built-on area calculation for a site   could  allow redevelopment with seriously under-designed stormwater controls. Under existing rules for  water supply watersheds,  low density development (defined as no more than 12% built-on area) does not require engineered stormwater controls; projects exceeding 12% built-on area do.   H 201 would allow a  developer  in a  water supply watershed to  increase existing built-on area  by another 12% before being required to install any engineered stormwater controls. If the added built-on area exceeds  12%, the developer will  only have to provide stormwater controls for the added built-on area.

Using redevelopment of a property in a water supply watershed (but outside the water supply critical area) as example: If  the property  already has 50% built-on area,  H 201  allows the developer to  expand the built-on area by another 12%  with no engineered stormwater controls. The developer could add up to 30% additional built-on area (the maximum allowed under the rules) — for a total of 80% built-on area —  and only provide stormwater control  for 30%. The end result could be  a  property in a water supply watershed that is  largely impervious, but has either no stormwater controls  or stormwater controls designed  for only  a fraction of the stormwater generated by the development.  The EMC’s coastal stormwater rules and rules for municipal storm sewer systems also use the low density/high density approach  (with  different high-density  thresholds), so the bill will have similar results in  those programs.

It is less clear how the bill will affect  stormwater requirements  under nutrient management strategies for impaired waters (including the  Neuse River, Tar-Pamlico River, Falls Lake and Jordan Lake).  The nutrient management strategies address  the stormwater impacts of new development ( including  redevelopment that adds built-on area) by limiting nitrogen and/or phosphorus loading associated with the development activity.  Developers   usually  meet those load limits by either limiting built on area or installing stormwater controls, but the nutrient management rules do not directly link stormwater requirements  to percentage of built-on area.  The  question is whether the provision in  H 201  prohibiting the EMC from requiring a private property owner to provide stormwater controls for existing development would also affect the calculation of  nutrient loading on a redevelopment site where some part of the loading comes from  existing built-on area.   Nutrient management strategies will also be affected to the extent  those rules  loop in other stormwater standards (like those for water supply watersheds) in areas  with specific water quality classifications.

H 201 may not have a significant effect on the existing development rules included in the Falls Lake and Jordan Lake nutrient strategies. Depending on the success of other parts of those  nutrient management strategies,  local governments in the two watersheds could be required to  achieve additional reductions in nutrient loading from  existing developed areas.  Although stormwater retrofits will be one way to meet the reduction targets, the rules give local governments  flexibility  to use a number of strategies to achieve the load reductions and those may or may not include requirements on private property owners.

The savings clause  in H 201  allowing  the EMC to require stormwater controls on preexisting development to the extent required by federal law raises the question of what it means to be “required by federal law”. The  federal Clean Water Act  creates  a framework, but  allows the state to develop  water quality standards appropriate for state waters.  The U.S. Environmental Protection Agency (EPA) has delegated implementation of most federal Clean Water Act programs to North Carolina’s Department of Environment and Natural Resources (DENR),  but   subject to EPA approval and continuing oversight.  Federal law does not dictate the content of state water quality rules, but does require the state to have standards adequate to protect  water quality.  In the programs described above, stormwater controls have played an important role in those standards.  The question  is  whether state water quality  standards  will still be  adequate to  meet the goals of  the Clean Water Act  given  the restrictions  imposed by H 201.

The federal Clean Water Act also requires the state to establish a Total Maximum Daily Load (TMDL) for any pollutant contributing to impaired water quality. The  TMDL caps pollutant discharges  to an impaired water body at a level that will allow the waters to meet water quality standards.  TMDLs must be approved by EPA . State nutrient management strategies for the Tar-Pamlico River, Neuse River, Falls Lake and Jordan Lake have been designed (and approved by EPA) to meet the TMDL requirement for those nutrient-impaired water bodies. Each of those nutrient strategies relies in part on stormwater controls to reduce nutrient loading from new development. By significantly changing stormwater requirements as applied to existing development, H 201 has also changed the TMDLs previously approved by EPA.

Amendments to the Clean Water Act in the 1990s extended wastewater permitting requirements to municipal stormwater discharges, requiring municipalities to get National Pollutant Discharge Elimination System (NPDES) permits for storm sewer systems.  To have permit coverage, federal  rules require  municipalities to put  stormwater controls on new development. The EMC’s  urban area stormwater rules, which  set the minimum requirements for coverage under a federal NPDES stormwater permit, will also be affected by H 201.  It isn’t immediately clear whether the changes required by H 201 will be consistent with federal NPDES stormwater rules.

The  EIS exemption  in H 201 will likely have limited impact (positive or negative).  Under the  exemption, a state Environmental Impact Statement (EIS) would not be required for expansion or new construction that does not increase the footprint of a building or facility to more than 150% of the  previous footprint. (In other words, the total footprint of the expanded facility could be 50% larger than the existing facility without triggering an environment document.)  The State Environmental Policy Act, N.C.G.S. 113A-1, et seq.,  only requires an  EIS for a project that requires a state approval and involves expenditure of public funds or use of public lands. As a result,  SEPA  has a limited impact on private development projects.

For projects  meeting the  SEPA triggers,  DENR   rules already exempt many construction projects. The difference is that   H 201 grants an EIS exemption based  on the size of the expansion project alone and without regard to natural resource impacts. To the extent H 201 has an effect on SEPA reviews, it may be to exclude from review some construction projects that  would otherwise require an environmental document   because of the  sensitive location or amount of stream and wetland disturbance.  Note: some projects  will still trigger an EIS under federal law; the National Environmental Policy Act (NEPA) applies to both public and private projects and the H 201 exemption would have no impact on federal environmental review requirements.

Ecological Flows: Round 3

June 30, 2014. Last week, the House approved a new  version of  House Bill 1057 (originally a study of interbasin transfer issues).  The House  added a new section requiring the Environmental Management Commission (EMC) to study the method used for establishing minimum stream flows necessary to protect stream ecology  — or “ecological flows”. In the meantime, the bill would prevent the Department of Environment and Natural Resources (DENR) from developing river basin hydrologic models based on the recommendations of an ecological flow study just completed in late 2013 — work the  General Assembly itself directed in 2010 legislation.

The state’s Division of Water Resources (DWR) has been  working on  river basin hydrologic models for more than a  decade. The models turn information like  water volume; seasonal flow;  user demand (such as drinking water intakes); and permitted wastewater discharges  into a tool for predicting how water supply will  respond  to different conditions.  Federal relicensing of North Carolina’s hydropower dams prompted development of some of the earliest hydrologic models;  those models became  the basis for new hydropower license conditions.  DWR has completed models  for most of the state’s major river basins; the piece missing from the models has been a placeholder for  water needed to maintain aquatic ecosystems.

State and federal permit reviews for large water supply projects  (like reservoirs and new drinking water intakes) have long required analysis of impacts on aquatic life as well as downstream water users. The analysis has generally been done by the permit applicant on a project by project basis.   Session Law 2010-143 required DENR to characterize the ecology of the state’s river basins; identify the flow needed to maintain the integrity of those ecosystems;  and incorporate the “ecological flow” into each  river basin hydrologic model.     S.L. 2010-143 did not give the “ecological flow” component any regulatory effect; the law simply set in motion a process for looking more systematically at the impact of stream flows on aquatic ecosystems. Even though the law had no immediate regulatory impact,  it immediately encountered opposition from some municipalities  — led by the City of Raleigh —  out of concern that development of ecological flows would  lead to greater limits on public water supply projects.

As required under S.L. 2010-143,  DENR  convened a science advisory board to  recommend a  method for identifying the minimum stream flow necessary to maintain ecosystem integrity in each of the state’s river basins.  The science advisory board included representatives of agriculture, local government, electric utilities, conservation organizations and both state and federal regulatory agencies. The advisory board’s 2013 report titled “Recommendations for Estimating Flows to Maintain Ecological Integrity in Streams and Rivers in North Carolina” just became available in November 2013. The report recommends a   minimum “flow-by” (the percentage of  flow that remains in a stream after allowing for withdrawals ) of 80-90%.  Based on the recommendation, DENR intends  to use 85% flow-by as a planning tool, but will not  change  existing permitted flows or individually determined flow regimes.  DENR  has also indicated  that  more data will be needed before implementing other recommendations in the report. You can find a DWR presentation on use of the science advisory board’s report here .

House Bill 1057  appears to reject outright the work done by the science advisory board and requires the  EMC to do a new review of methods used to establish ecological flows — again based on the provisions of  S.L. 2010-143. The bill also allows the EMC to  create another scientific advisory panel. It isn’t clear what would be accomplished other than a further delay in consideration of ecological needs in river basin wear supply modeling.

In some ways, the ecological flows controversy parallels the earlier (successful) effort to limit use of sea level rise projections in state planning.  Opposition to possible policy changes no longer waits for the actual policy discussion — instead, the opposition has organized to limit use of the  underlying scientific or technical information.

Recycling Wastewater for Drinking Water — Without a Permit

June 19, 2014. In one of many quick changes over the last few legislative days, Senate Bill 163 (“Protect Landowner’s Water Rights”)  entered the telephone booth of the House Environment Committee yesterday and emerged as an entirely different bill entitled “Reclaimed Water as Source Water”.  The House adopted the new version of S 163 today,  making a significant change to state water quality  and drinking water laws with little debate.

The bill endorses the use of highly treated wastewater, classified under  state water quality rules as “reclaimed” water, to supplement drinking water supplies.  The policy makes sense  under the right conditions.  Treated wastewater  already indirectly supplements  drinking  water supplies; many wastewater treatment plants discharge to streams and rivers that also serve as  water supply sources for downstream communities. State reclaimed water rules also allow direct  use of reclaimed water for many non-potable purposes, including  landscape irrigation, easing demand on the drinking water supply.

Senate Bill 163,  as adopted by the House, goes further and  for the first time allows reclaimed wastewater to be used to directly supplement a drinking water supply. The problem — the bill appears to allow a water system to add reclaimed wastewater to a drinking water reservoir without a water quality permit.  If that is the  effect of the bill, it represents a significant change in the way the state protects the quality of drinking water supplies and  likely conflicts with the federal Clean Water Act.

Under the bill,   “notwithstanding any other provision of law, a local water supply system may combine reclaimed water with source water treated to provide potable water supply”  in an impoundment controlled by  the  water system.  The bill does not define “impoundment”,   but under state drinking water rules an “impoundment” means a reservoir.  That interpretation would also be consistent with  other  Senate Bill 163 language describing the addition of reclaimed water  as occurring before the water goes to the water treatment plant.

An impoundment used as a  public water supply source  would  usually be considered a “water of the state” under water quality laws. Most impoundments  have  been created by damming a river or stream segment to store water for  water supply and continue to release water through the dam to maintain downstream flows.  Wastewater  (even treated wastewater) can only be discharged to a water of the state under a  permit that  insures the discharge  will not result in violation of a water quality standards.  Under G.S. 143-215.1, it is unlawful to:

Cause or permit any waste, directly or indirectly,  to be discharged to or in any manner intermixed with the waters of the State in violation of the water quality standards applicable to the assigned classification.

An impoundment used as a drinking water source has specific water quality standards (adopted in state rules) to protect its  use as a water supply. Discharge of treated wastewater to a water supply source can be allowed,  but only  under permitted limits.  Unfortunately, the “notwithstanding” language in Senate Bill 163  seems to sweep away both the requirements of state  water quality permitting laws and the N.C.  Drinking Water Act.  Nothing in the bill itself requires the addition of reclaimed wastewater to be done under a water quality permit  or in compliance with water quality standards for public water supplies. Instead, the conditions in the bill read like a self-contained set of standards that rely on a 20% limit on the proportion of reclaimed water to total water produced by the impoundment  and a minimum  5-day holding time in the impoundment as a substitute for meeting water quality standards.

If — as it appears — the bill allows discharge of reclaimed water to a “water of the state” without a permit, it also  conflicts with federal  law. Many impoundments that are  “waters of the state”  would also be considered “waters of the United States” under the federal Clean Water Act.  Federal law  makes it unlawful to discharge a pollutant into waters of the United States without a Clean Water Act permit — a requirement that state law cannot waive.

Senate Bill 163 will now go back to the Senate for approval or disapproval of the new  House version of the bill.  If the Senate rejects the House rewrite, the bill will have to go to a conference committee to work out the differences between the two chambers.

If the House did not intend to allow the discharge of treated wastewater to a water supply reservoir without meeting state and federal water quality laws, it would be  helpful to clarify  the bill  before final adoption.

Beyond Coal Ash – Other Environmental Bills

For those of you making scorecards and tracking sheets for  2014 legislation, a list of other bills on energy and the environment filed  so far; some  bills have already  been  introduced in both chambers:

Environment. The first six bills listed below   were recommended by the House/Senate Environmental Review Commission (ERC).    The last, House Bill 1105,  came out of a House/Senate legislative study commission on land development.

House Bill 1081 (Senate Bill 765)  addresses several  concerns about  state and local permit review of engineering plans.  An engineer submitting an innovative design proposal to a state or local permitting agency will have the opportunity to elevate the  permit review to a supervising engineer.  The bill also allows the permitting agency to charge the applicant for a third-party engineering review if the agency does not have a staff engineer qualified to review the innovative design.  The bill makes other less significant changes. The bill requires  permit reviewers to clearly distinguish necessary design changes  from suggested changes and  cite the law or rule that makes a design change necessary for permit  approval. The bill also directs permitting agencies to review working job titles for permit reviewers  to insure only PEs have “engineer” job titles. For more on the history of these proposals, see an earlier post.

House Bill 1057 (Senate Bill 757)  requires the Department of Environment and Natural Resources (DENR) to study several  issues related to transfer of water from one river basin to another  or “interbasin transfer” (IBT):  1.  Whether  temporary and emergency interbasin transfers, including transfers to relieve water shortages caused by drought, should be regulated differently  than long-term interbasin transfers; 2. Whether interbasin transfers between river sub-basins should be regulated differently  than interbasin transfers between major river basins. and 3. Whether there are types of interbasin transfers that should be exempt from state approval or  other regulatory requirements.

Interbasin transfers  usually  involve piping water from a drinking water source in one river basin to  a water system in another, although some large water systems cross river basin boundaries  and need an IBT just to serve  system customers. An  IBT  of  2 million gallons per day or more requires a certificate of approval from the Environmental Management Commission (EMC). Rather than using the boundaries of the  17 major state river basins,  the  IBT law requires  a certificate for any transfer among  38 sub-basins.  Over the last seven years, a series of legislative changes have made the IBT approval process increasingly difficult.   The House and Senate IBT bills signal an interest in reexamining some of the restrictions.

House Bill 1058 (Senate Bill 756) directs the General Assembly’s Program Evaluation Division (PED) to study: 1.  the benefits of combining water and sewer systems into larger, regional entities; 2. potential incentives for systems to merge; and 3. the possibility of  allowing one system to apply for grants  on behalf of  a less efficient  system  based on a commitment to purchase, interconnect  or enter into a joint management agreement with the less efficient system. The idea of encouraging merger of  small water systems and wastewater  systems into larger, more efficient utilities  has popped up in just about every legislative session for a decade or more.  The biggest obstacles tend to be local resistance and the financial burdens  associated with the takeover of  a small, inefficient system often badly in need of capital investment.  The last of the three PED study issues (allowing one system to apply for grants on behalf of a system targeted for takeover) may be focused on removing the financial disincentives.

Senate Bill 737 (Amend Isolated Wetlands Regulation). “Isolated wetlands”  fall outside the federal Clean Water Act permitting program for wetland impacts because the wetlands do not have a connection to navigable waters.  (Congress adopted the Clean Water Act  under its  authority to regulate interstate commerce and  limited federal regulatory jurisdiction to navigable waters used in interstate commerce.)   In response to pressure from realtors and developers to eliminate state  protection of isolated wetlands,  S737  allows additional  impacts  to isolated wetlands without  prior state permit review.  State water quality rules  now allow  development impacts  to  isolated wetlands below specific thresholds to be “deemed permitted”.  S737 raises those thresholds from 1/10th of an acre to 1/3 of an acre west of Interstate 95 and from 1/3 of an acre to 1 acre east of Interstate 95.  (I-95 has long been used as the  dividing line between the wetter eastern counties and drier piedmont/western counties.)  DENR has expressed concern that raising the  threshold to 1 acre east of I-95 will effectively eliminate review of projects impacting isolated wetlands in the eastern part of the state. S737 also reduces the amount of mitigation required for isolated wetland impacts (from a 2:1 ratio to 1:1) and eliminates the  practice of giving more mitigation credit for creation or restoration of wetlands  than  for preservation of existing wetlands.

Senate Bill 738 (Clarify Gravel Under Stormwater Laws). In 2013, the N.C. Homebuilder’s Association successfully lobbied for legislation directing  the state stormwater  program to  treat gravel areas as “pervious” (meaning the surface allows water to percolate through to the soil beneath) and exclude  them  from the calculation of built-upon area on a development site.  The amount of built-upon area determines the level of stormwater control required for the project, so excluding gravel areas from the calculation  potentially  reduces stormwater costs.  The 2013  provision  (included in  Session Law 2013-413)  also directed the ERC to study “how partially impervious surfaces are treated in the calculation of built-upon area under [the stormwater] programs”.    Ironically, the ERC study found: 1.  no consensus on  the definition of  “gravel”; and 2. evidence that permeability is a function of several factors, including the nature of the substrate and method of installation as well as the surface material itself.  Instead of further weakening stormwater control requirements,   the  ERC bill recommends repeal of the 2013  provision declaring  gravel areas to be pervious and  funds a study of the permeability of different surface materials to be done by the North Carolina State University Department of Biological and Agricultural Engineering.

Senate Bill 734  (Authority to Adopt Certain Ordinances).  The  Regulatory Reform Act of 2013 (Session Law 2013-413)  put  a one-year moratorium on local environmental  ordinances and directed the ERC  to study  local authority to adopt environmental ordinances. The  moratorium/study  provision represented a compromise  between the House and the Senate after the Senate  passed  a bill (Senate Bill 112) putting significant restrictions on local environmental ordinances.

An ERC working group looked at the issue  of local authority through the lens of actual conflict between local ordinances and state or federal environmental  rules.  The legislators identified only one  conflict — local ordinances on use of fertilizers regulated by the N.C. Department of Agriculture and Consumer Services.  Based on the working group recommendation, the ERC  proposed  a limited bill addressing state  versus  local authority to regulate fertilizer use. The bill also  directs  DENR and the Department of Agriculture to  report back in  November 2014  and again one year later on any  local ordinances that  “impinge on or interfere with” state rules.  Supporters of S112   almost certainly want something more.  It seems clear the intent of S112 was to prevent  local government from imposing  additional environmental requirements on developers  and not simply  to avoid conflict with state rules.

House Bill 1105  amends the section of the  state Sedimentation Pollution Control Act that allows DENR to delegate  authority to a local sedimentation program. The amendment transfers responsibility for enforcement of previously approved erosion and sedimentation control plans from DENR to the local government when DENR approves a local program.

Energy

House Bill 1055   would appropriate a total of  $5 million to North Carolina State University and UNC-Charlotte  for research on renewable energy, energy storage, and coal ash reuse.  The bill sponsor,  Rep. Mike Hager,  spent much of the 2013 session   in an unsuccessful effort  to repeal  the state’s renewable energy portfolio standard (REPS).  (You can find the first of several  posts on the 2013 REPS repeal bill here.)  Some of the 2013 combatants  have already signaled an intent to  continue the battle for  repeal  of the REPS standard.    That  very fresh legislative history makes  Rep. Hager’s  proposal to  fund research on renewable energy  somewhat surprising.

Senate Bill 786, (The Energy Modernization Act).  The bill proposes so  many changes to state law on  oil and  gas exploration and development that it merits a separate  post. (To follow.)

A Preview of 2014 Environmental Legislation

March 19, 2014.  On March 12, the N.C. General Assembly’s Environmental Review Commission (ERC) met to hear reports from several  working groups created to follow up on 2013 legislative issues. [The ERC is a joint House/Senate committee that meets between legislative sessions to study and develop  legislation on environmental issues.]  The reports included recommended legislation, but the ERC did not really discuss  the  bill drafts. The ERC will vote on legislative proposals for the  2014 session  in April.  The working group bill drafts   represent a starting point for development of 2014 legislation; the ERC co-chairs indicated a willingness to consider changes to  the  proposals  before voting  on April 3 to approve  a package of  2014  ERC  bills.  With the understanding  bill drafts may change between now and April 3,  legislative proposals presented last week included:

Stormwater.  The Regulatory Reform Act of 2013 (Session Law 2013-413) changed state  stormwater  standards to  treat gravel areas as “pervious” and exclude those areas from the calculation of built-upon area on a development site.  (A pervious surface allows  water to  percolate through  to the soil beneath; an impervious surface –such as a concrete driveway —  does not.) Since the amount of built-upon area determines the level of stormwater control required, developers had asked for exclusion of gravel from the calculation of built-upon area as a way to reduce stormwater requirements. The 2013 regulatory reform provision  also directed the ERC to study state stormwater programs “including how partially impervious surfaces are treated in the calculation of built-upon area under those programs”.

Having successfully lobbied for legislation treating “gravel” as a pervious surface and intending to  push for changes  in the way partially impervious surfaces are counted toward built-upon area, supporters of the 2013 legislation encountered a complication — there was no consensus on  the definition of  “gravel”.  As a result, the ERC stormwater working group  focused  on the  gravel  controversy instead of moving  on to the  issue of partially impervious surfaces.

The working group found that gravel areas may or may not be pervious depending on the size and type of the aggregate material used and the underlying substrate. The draft  bill presented to the ERC would actually undo the 2013 legislative decision to exclude all gravel surfaces from the calculation of built-upon area and  direct the Department of Environment and Natural Resources (DENR)  to contract with N.C. State University for a study of the pervious/impervious qualities of different types of aggregate materials.

Isolated Wetlands. After several bills proposing to repeal  state rules protecting isolated wetlands failed to win passage,  the  General Assembly asked the ERC to study isolated wetlands regulation.  (See an earlier post for more background on the isolated wetlands issue.) Senator Brent Jackson  presented a recommendation for  modification, but not repeal, of state standards for development in isolated wetlands. You can find a copy of the draft legislation here.

The bill would allow developers to disturb a somewhat larger area of isolated wetlands without a water quality permit review.   Current state rules  allow  isolated wetland impacts below specific thresholds to be “deemed permitted” under certain conditions. The proposed legislation would raise those thresholds. West of Interstate 95, the “deemed permitted” threshold would be increased  from 1/10th of an acre to 1/3 of an acre; east of Interstate 95,   the “deemed permitted” threshold would increase from 1/3 of an acre to 1 acre.  (Interstate 95 has long been used as the  dividing line between wetlands-rich eastern counties and piedmont/western counties that have fewer wetlands.)

The bill also proposes to reduce the mitigation required for isolated wetland impacts.  Wetland rules only require mitigation (in the form of wetland creation, wetland restoration or preservation) for impacts to one acre or more of wetlands; for projects requiring mitigation, the rules set  a  2:1 ratio of acres of wetlands mitigation to acres of wetlands impacted by  development.  The 2:1 mitigation ratio  allows for  loss of wetland function and  potential for mitigation failure.  Current  rules also use  a sliding scale of mitigation credits — giving less credit toward meeting the mitigation requirement for preservation of existing wetlands and more credit for creation or restoration of wetlands.  The ERC working group recommendation appears to propose a flat 1:1 mitigation ratio and makes no distinction based on the type of mitigation used.

Local Environmental Ordinances.  An earlier post described legislative efforts to restrain local government adoption of environmental ordinances,  resulting in a one-year moratorium on adoption of  new city and county  environmental ordinances and an ERC study. The ERC working group on local ordinances, led by Rep. Chuck McGrady and Sen. Andrew Brock, found little  actual conflict between state environmental regulations and local ordinances.  The existence of a specific state/local conflict  apparently became the practical guideline for the working group’s proposed  legislation.  The draft bill addresses the one area of conflict the members found — local ordinances on use and application of fertilizer already regulated by the N.C. Department of Agriculture and Consumer Services.

The recommended legislation follows  the General Assembly’s  past practice  of preempting  local regulation only when necessary to meet  some overriding state interest. It is not clear how the narrowly drafted bill recommended by the  working group will be received by those pushing for stricter limits on local environmental ordinances.   In 2013, the N.C. Homebuilders Association  lobbied for the much broader restrictions on local authority in Senate Bill 112 (discussed in the earlier post).  Under the approach  proposed  in SB 112,   it would be very difficult for a local government  to adopt a  more stringent  ordinance on a subject already addressed (however narrowly) by state or federal environmental rules. For Senate Bill 112 supporters, the issue may be more about the benefits of  a single, statewide set of minimum development standards  than concern about conflict between state and local  regulation.

Reporting wastewater spills. In response to concerns about delayed public notice of the recent Haw River wastewater spill,  an  ERC working group   proposed to amend the existing notice law. You can find a copy of the draft legislation here.  The amendments would do two things —

1. Clearly require notice to DENR  of any spill of more than 1,000 gallons of untreated wastewater.   (Although notice to DENR can be implied from the existing law,  the statute only talks about published notice.)

2. Reduce the time allowed to provide notice (both to DENR and to the public) from 48 hours to 24 hours after untreated wastewater reaches surface waters.  Based on discussion at the March meeting, the ERC  may consider requiring more immediate notice to DENR.

Review of Engineering Work. North Carolina’s professional engineers (PEs)  have lobbied for several years to limit state review of plans prepared  by  PEs and  to limit the ability of regulators to require  changes to  engineering  plans. The most recent effort  led to language in the Regulatory Reform Act of 2013 (Session Law 2013-413)  requiring a study of state and local review of engineering plans. Section 58 of S.L. 2013-413   directed DENR, the Department of Transportation, the Department of Health and Human Services and local governments to study:

“(iii) the standard scope of review within each permit program, including whether… staff are requiring revisions that exceed statutory or rulemaking requirements when evaluating such permits or plans; [and]

(iv) opportunities to eliminate unnecessary or superfluous revisions that may have resulted in the past from review processes that exceeded requirements under law, and opportunities to otherwise streamline and improve the review process for applications and plans submitted for approval.”

These issues have come up a number of times in recent years and seem to represent several different concerns on the part of private sector engineers: questions about the engineering credentials of state and local permit reviewers; concern about professional liability for changes in engineering design required by  state/local permitting staff; time added to the permitting process; and chaffing at second-guessing of  a PE’s judgment by regulatory staff.

The working group’s legislative proposal,  can be found here. It appears to take a moderate path toward managing the tension between private sector engineers and state/local permitting staff. (A sometimes necessary tension given their different responsibilities.) One interesting part of the proposal has to do with review of innovative systems and designs. The bill  would allow a permitting agency to charge the  applicant for a third-party engineering review of an innovative system if the agency does not have a staff engineer qualified to do the review.  That seems to be a wise approach given past controversies (and litigation) over approval of innovative systems.

Historical note: There have been a number of lawsuits against state and local  permitting agencies based on  approval of  engineered innovative systems that later failed.  One of the largest lawsuits resulted from the failure of a wastewater system serving  dozens of homes in an Orange County subdivision in the 1990s.   The homeowners sued the developer, the engineering firm that designed the system and the private utility managing the system — but also sued the state  based on claims of negligent permitting. The state ultimately settled the lawsuit, paying thousands of dollars in damages to the homeowners.

Coal Ash.  ERC co-chair Rep. Ruth Samuelson  noted the high level of  public interest in coal ash,  but  indicated the ERC would not discuss coal ash  at the March meeting.  Samuelson stressed the need  for deliberation and informed decision-making. The  ERC has only one more scheduled meeting before the General Assembly convenes in May.  At the  April 3 meeting, the ERC will  vote on recommended legislation for the legislation session and there has been no discussion of potential  coal ash legislation.