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NCLM News & Political Report

With the legislative Short Session beginning tomorrow, League staff and members have laid the groundwork for a busy session.

Beginning last fall, League policy committees met to consider modifications and additions to the League's policy goals. Based on recommendations of those policy committees, the NCLM Board of Directors adopted a revised package of advocacy goals in March. These specific policy aims, developed by the League membership along with the over-arching Core Municipal Principles, represent the legislative and regulatory priorities for N.C. cities and towns.

League members have also made plans to continue conversations with their local legislative delegations by meeting with legislators at their Raleigh offices. First, they will participate in the League's ongoing "Bring 5" campaign. This effort encourages local officials to bring five community leaders with them to legislative visits. This campaign will extend to Town Hall Day, the League membership's largest legislative gathering, scheduled this year for June 6.

The May 8 primary elections settled a handful of legislative races for the 2013 N.C. General Assembly. Based on raw numbers, more voters cast a ballot in this year's primary elections than any previous primary election in N.C. history. The League's Chris Nida wrote a short synopsis of primary election results for the May 11 LeagueLINC Bulletin. The N.C. Free Enterprise Foundation, a go-to resource for election anaylsis, produced this guide to primary election results. Overall, these contests as well as races in the fall general election will guarantee that well over half of the 2013 N.C. General Assembly members will serve their first or second term.

Meanwhile, leadership changes have occurred at both the N.C. Department of Environment and Natural Resources (DENR) and the N.C. Environmental Management Commission (EMC). DENR Secretary Dee Freeman promoted Mary Penny Thompson to the position of Chief Deputy Secretary, upon the retirement of Manly Wilder after 43 years of public service. Thompson had previously served in several DENR leadership capacities, including as General Counsel. To fill that role, Freeman hired Bill Cary, an attorney formerly in private practice. And EMC Chair Steve Smith has appointed Commissioner Ernest Larkin as Chair of the NPDES Committee.

The League staff and members look forward to working with future and returning legislators, as well as Ms. Thompson and Dr. Larkin, in their new roles.


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Legislature Expected to Consider Natural Gas Extraction Proposals

With the release of the final report on natural gas extraction by the N.C. Department of Environment and Natural Resources (DENR), legislative leaders in the House and Senate have offered competing proposals to legalize the industry in North Carolina. These proposals will likely feature intense negotiations throughout the Short Session, and the League will continue to advocate for appropriate local government authority over this new industrial activity.

The Senate proposal (pg. 37), advanced by Sen. Bob Rucho, would fast-track development of necessary regulations by July 2014 but would also take away all local authority to control aspects of this industrial activity. The House proposal, offered by Rep. Mitch Gillespie, is expected to provide for development of regulations with a year of local government input built into the process.

In anticipation of these legislative proposals, League members adopted a policy position in March to support natural gas extraction so long as development of the industry preserves the health, safety, and welfare of communities.

Natural gas extraction is the process of removing natural gas from underground rock shale. The process works by injecting a mixture of water, sand, and chemicals deep underground, fracturing open the shale and allowing natural gas to flow to the surface. The N.C. Geological Survey has estimated that reserves of shale gas exist in North Carolina, beginning in Granville and Person counties running southwest through a swath of central North Carolina that dips into the Sandhills region and ends in Anson County. In addition, reserves may exist in pockets of Rockingham, Stokes, and Yadkin counties.

Legislative debate over a new regulatory regime is expected because currently, N.C. laws and regulations prohibit natural gas extraction. However, beginning last session, legislative leaders (led by Sen. Rucho and Rep. Gillespie) and Governor Perdue have voiced support for reforms that would allow development of this industry.

While natural gas extraction has brought positive economic benefits and jobs to other states, local governments there have also dealt with a wide range of impacts from development of this industry, including concerns about water supply, wastewater treatment, stormwater runoff, road and bridge systems, public safety, emergency response, and zoning authority.


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Short Session Preview

Many proposals remain eligible for consideration by the N.C. General Assembly in the 2012 Short Session, which begins tomorrow. This overview by WRAL quotes legislative leaders promising a speedy session that will conclude by July 4. With the focus on state budget adjustments, controversial bills will not likely be considered.

Of top interest to League members, legislators have indicated priority consideration of hot-button local government authority issues of annexation and extra-territorial jurisdiction. The outcome of these discussions will affect the way communities grow and could dictate water and wastewater service areas for many utilities. In addition, legislators will likely vote on a constitutional amendment regarding governments' use of eminent domain, including for public utility purposes.

Other environmental legislation that could receive consideration this session includes the following topics:

  • Water. Beginning last session and continuing through the interim, the League has worked with a coalition of business and industry interests to advance changes to the state's reclaimed water laws, as well as statutory changes to increase water storage and ensure a smoother interbasin transfer process. Legislators may consider some of these ideas in the Short Session. In addition, the League will follow eligible bills that would prioritize the right of agricultural water withdrawers over the rights of all other water users and would require the interconnection of water and wastewater systems.
  • Regulatory reform. After overhauling the state's regulatory process last session, legislative leaders have expressed a desire to make further regulatory reforms in the Short Session. The Joint Committee on Regulatory Reform has met periodically throughout the interim period between sessions, with its last meeting today. Any proposals from this committee would be eligible for consideration in the Short Session.
  • Sea level rise. The Senate Agriculture/Environment/Natural Resources Committee will hear a bill Thursday regarding the method of determining rates of sea level rise. A proposed committee substitute to HB 819 would limit any N.C. governmental entity, including local governments, to using a rate of sea level rise as determined by the N.C. Division of Coastal Management (DCM). Further, the bill would only permit DCM to consider data after 1900 when calculating rates of sea level rise.
  • DENR budget & regional offices. After slashing budget levels for the N.C. Department of Environment and Natural Resources (DENR) in 2011, legislative budget-writers have proposed more modest budget cuts for the next fiscal year. In addition, budget guidelines indicate that funding of the Clean Water Management Trust Fund may become subject to further negotiations, while the required state matching funds for the State Revolving Funds may come from other budget reductions within the DENR budget. Calendars indicate that the House budget bill will be released Wednesday, the first day of session. Legislators will also consider an interim study recommendation against eliminating any DENR regional offices.
  • Asheville water system. The Metropolitan Sewerage/Water System Committee has recommended that legislators consider a bill in 2013 that would mandate the merger of Asheville's water system with the Metropolitan Sewerage District of Buncombe County. The committee report states that if the governments develop their own plan, "due consideration would be given." The League opposes this proposal and delivered this letter to the committee and Speaker Thom Tillis.
  • State buffer program. Pursuant to a 2011 legislative directive, DENR produced a report in February regarding the Neuse and Tar-Pam buffer rules. The report examined whether the two sets of buffer rules might be amended or implemented in a different way to achieve the same level of water quality protection while reducing the impact to riparian property owners in the two river basins; and whether to exempt from the rules all single-family residence lots of two acres in size or less platted before the rules became effective. Legislators may consider these proposals in light of the report's recommendations to keep the buffer rules in place.

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Regulators Promise Big Proposals After Nutrient Forum

State regulators expect the upcoming "N.C. Forum on Nutrient Over-Enrichment" to serve as a springboard for several large proposals that would address nutrient impairment in state waters. In remarks to the N.C. Environmental Management Commission (EMC) Thursday, Division of Water Quality (DWQ) Planning Section Chief Alan Clark told Commissioners that the forum, which will focus on the state of nutrient science, law, and policy in North Carolina and the U.S., would result in more proposals for their consideration later this year.

First, Clark forecast that his section would bring forth a rule to establish in-stream nitrogen and phosphorus standards -- the so-called "numeric nutrient criteria" that have caused extreme controversy in Florida and elsewhere over the past two years. Clark stated that the U.S. Environmental Protection Agency (EPA) expects North Carolina to develop in-stream standards as a condition of a federal grant to DWQ.

Then, Clark told Commissioners to expect a package of "proactive measures" to prevent future nutrient impairment. That idea recalls a defeated 2010 nutrient rulemaking, though Clark told Commissioners that this new package would not take the same form as his section's 2010 attempt at statewide nutrient regulation.

The topic of nutrient impairment is a top EPA priority and has commanded much discussion and action across the country since President Obama took office. Specifically, the Obama administration has responded to environmental activists' calls for states to develop numeric nutrient standards, or criteria, which dischargers such as wastewater treatment plants and stormwater systems would then have to meet. EPA Senior Policy Advisor Ellen Gilinsky will offer EPA's perspective during the N.C. forum.

N.C. Nutrient Forum

The agenda for the upcoming forum promises a thorough investigation into one of the most vexing water quality issues in North Carolina. The N.C. Division of Water Quality (DWQ) proposed this forum, to be held May 29-30 at the RTP Sheraton Imperial Hotel, in response to the defeat of its 2010 nutrient proposal when sent to the EMC for consideration.

Agenda topics will examine nutrient control strategies in North Carolina, Florida, Maine, and the Chesapeake Bay. Over twenty speakers will address possible legal frameworks for nutrient strategies, costs and funding of controls, and different types of controls. These topics respond to the request of EMC Chair Steve Smith when the EMC shelved the 2010 nutrient strategy proposal. Specifically, Smith asked DWQ to:

  1. Explore alternatives to the 2010 strategy
  2. Form a clear statement of the science underlying nutrient strategies
  3. Conduct a detailed review of costs and benefits of any chosen strategy
  4. Consider basing the strategy on a parameter besides chlorophyll-a
  5. Examine other indicators of changes in nutrient levels in water bodies

The League worked with DWQ staff in suggesting speakers and topics for discussion to ensure a strong local government and legal perspective in the discussion. The forum will feature a number of local government speakers and panelists, including:

  • Jeff Hughes, UNC Environmental Finance Center
  • Jackie Jarrell, Charlotte-Mecklenburg Utilities
  • Darryl Moss, Creedmoor Mayor and EMC Commissioner
  • Michael Richardson, Cape Fear Public Utility Authority 
  • Richard Whisnant, UNC Environmental Finance Center

The forum will culminate in a report of the topics discussed. Organizers have structured audience questions through use of a panel, and all questions must be submitted in advance through this website.

Register online for the forum, and you may be eligible to receive 11 PDH contact hours. DWQ has also applied for up to 12.5 of CLE hours.


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Mercury Permitting Strategy Targets Wastewater

Wastewater dischargers -- both municipal and industrial -- will be the only two classes of permit-holders targeted by North Carolina's proposed mercury water body clean-up plan.

The state Division of Water Quality (DWQ) estimates that wastewater dischargers contribute two percent of the mercury load to the state's waters, while airborne mercury that reaches the ground via rainfall contributes the remaining 98 percent. Unlike wastewater discharges, permitted sources of air emissions will not be affected under this plan. In addition, DWQ will not require any load reductions from permitted stormwater programs.

This water body clean-up plan -- generally called a Total Maximum Daily Load (TMDL), its name in the federal Clean Water Act -- was developed in response to measured accumulations of mercury in large-mouth bass in N.C. waters. As with other TMDLs, DWQ proposes requiring reductions from municipal wastewater treatment systems through limits in their federal discharge permits.

The draft mercury TMDL released by DWQ in late April applies to all waters in the state, the first-ever statewide TMDL for North Carolina. Read this March 2012 EcoLINC article for more background on this unusual TMDL, and this April 2012 EcoLINC article on the unprecedented N.C. Environmental Management Commission (EMC) vote on the plan.

Permitting Strategy

Generally, this strategy caps the amount of mercury permitted to enter N.C. waters. The wastewater permitting strategy released along with the TMDL would require the following:

  • Major wastewater facilities without a mercury limit must monitor for mercury in conjunction with their priority pollutant analysis
  • Major wastewater facilities with an existing mercury limit must monitor for mercury, develop a mercury minimization plan, and receive a permit limit for mercury
  • Major wastewater facilities receiving a new limit will be allowed five years to phase in the requirements listed above for facilities with an existing limit
  • New or expanding wastewater facilities will be evaluated for their potential to discharge mercury; if they have that potential, they will receive a permit limit for mercury
  • Minor wastewater facilities must monitor for mercury once every five years, but will not receive a permit limit unless the monitoring data indicates a need

Next Steps

Local government and industrial groups have many questions regarding this strategy. DWQ plans to answer questions at two stakeholder meetings. The first was held yesterday in Hickory, while the second is scheduled for May 23 in New Bern (see calendar below for details).

In response to questions from EMC members at the EMC meeting Thursday, DWQ committed to gathering all comments received at these stakeholder meetings and to provide a response to the comments. The League urges its members with major wastewater facilities to attend this meeting to learn how the permitting strategy may affect operations.

In addition, DWQ will accept written comments on the TMDL and wastewater permitting strategy through June 11. The EMC plans to vote on the TMDL at its July meeting.


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EPA Signals Intent to Discard Stormwater Flow TMDL Approach

In actions that could have implications for permitted N.C. stormwater programs, the U.S. Environmental Protection Agency (EPA) has taken steps to discard its endorsement of a controversial approach to certain stormwater-related water body clean-up plans, or Total Maximum Daily Loads (TMDLs). In the past month, EPA took two important actions, with a settlement agreement in Missouri and revision of a related guidance document.

EPA's controversial approach, adopted last year by the N.C. Division of Water Quality (DWQ), bases these TMDLs on stormwater flow, which acts as a surrogate for a regulated pollutant. This novel TMDL approach originated with a TMDL in Connecticut. In the view of N.C. local governments, the approach does not represent a valid method for water body recovery.

Under the federal Clean Water Act, a TMDL must be based on a specific pollutant that exceeds a corresponding water quality standard. When EPA adopted its stormwater flow approach in 2010 guidance, the League and other groups objected, partly by arguing that because stormwater flow is not a pollutant with a water quality standard, it cannot legally form the basis of a TMDL.

EPA-Missouri Settlement Agreement

In Missouri, EPA agreed April 30 to revise a stormwater flow TMDL for Hinkson Creek, allowing the affected permit-holders to collect more data. Then, parties will develop a scientifically-defensible management strategy to address impairment in the impaired waters. In the settlement agreement, EPA also agreed to allow the state environmental agency to cease TMDLs for water bodies for which there are only "unknown pollutants." A related lawsuit challenging another Missouri stormwater flow TMDL is also in settlement negotiations.

Around the same time as the Missouri actions, in North Carolina, DWQ drafted a stormwater flow TMDL for Little Alamance Creek, now withdrawn. The affected permit-holders, which included the cities of Burlington and Graham, as well as the League and other local government groups, vigorously contested the TMDL. Read the League's comments.

In response to the concerns, DWQ agreed to allow the governments affected by the proposed Little Alamance Creek TMDL to instead formulate an alternative water body clean-up plan, under a set of guidelines for a Category 4(b) demonstration. The parties and other local governments have also committed to supporting further research on the potential for biological recovery in urbanized watersheds affected by increased stormwater flow.

DWQ has not indicated that it would pursue stormwater flow TMDLs in other watersheds, an initial concern for local governments who worried that similar TMDLs could be written statewide in a "cookie cutter" approach. Once a TMDL is written, only those entities holding permits are held responsible for taking actions to reduce the pollutant load to waters. Over 120 N.C. cities and towns hold stormwater permits.

EPA Stormwater Flow Guidance

By retracting the Missouri stormwater flow TMDLs and pursuing settlement negotiations rather than litigation in other stormwater flow TMDL challenges, EPA may be signaling a withdrawal of its 2010 stormwater flow guidance. The guidance represented a significant departure from past TMDL practices, and the League and other interested groups argued that such a switch in policy approach may only be done through the public process of rulemaking.

On March 13, EPA submitted a revised guidance document to the White House Office of Management & Budget for review. After review, EPA could decide to revise, retain, or drop the guidance altogether.


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DWR Readies First Hydrologic Model for Public Review

The N.C. Division of Water Resources (DWR) has prepared its first hydrologic model for public comment. A hydrologic model simulates the flow of all waters in a river basin, taking into account surface and ground waters, transfers into and out of the basin, other withdrawals, ecological flow requirements, and other data on the flow of water. These models could prove to be a valuable tool for local governments in assessing the resiliance of their water supplies versus future growth projections.

Under a process initiated by 2010 legislation, DWR must propose all seventeen N.C. river basin models for approval by the N.C. Environmental Management Commission (EMC). An EMC committee gave its approval to the first model, the Broad River Basin Model, Wednesday. DWR expects a 60-day public comment period to begin later this month, with no public hearings scheduled. However, DWR will likely hold one online training session during the public comment period for the public to learn how to use the model. This process is not considered rulemaking and therefore will not follow formal rulemaking procedures.

The Broad River Basin covers an area in southwestern North Carolina that includes most of Henderson, Polk, Rutherford, and Cleveland counties. The cities of Forest City, Kings Mountain, and Shelby all have surface withdrawals in the basin.

While the legislation does not direct a specific use for these models, DWR expects the models to:

In tandem with the public comment period, another EMC committee, the Water Allocation Committee, will likely receive a briefing on the model at its July meeting and schedule a vote for its September meeting. The full EMC could take a vote on the model in September as well.

However, any EMC vote on a river basin model would be conditional at this point. The Commission's approval is preliminary because the models do not include ecological flow, the amount of stream flow necessary to maintain ecological integrity in the stream. In any future regulatory scheme to allocate water, ecological flow will function as an automatic allocation for aquatic life in a stream.

The same legislation that created the models also directed a scientific process to estimate ecological flow, led by the Ecological Flow Science Advisory Board. This Board, which includes several local government representatives, is currently working to provide the technical process for determining ecological flow in each river basin. Once the Board finishes its work and DWR adjusts the basin models, the EMC will have an opportunity to provide a final vote on each model.

Each river basin model will be built using a computer system called OASIS. These sophisticated models, which can simulate various predictions for future climate factors such as temperature and rainfall, may allow local governments and other water users to fine-tune their estimates of future water supply needs. DWR may also use completed models when evaluating applications for interbasin transfers.

Read a report on the Broad River Basin Model.


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Regulatory Briefs

A committee of the EMC recommended approval of a proposal that would increase the ability of local governments to restore urban stream buffers...During a public comment period ending July 2 that includes a public hearing May 23, DWQ will accept proposals to increase the flexibility of groundwater quality standards while maintaining water quality and public health...In its UCMR3 list, EPA has proposed numerous compounds for which it will require three years of monitoring, including hexavalent chromium and total chromium...In a related action stemming from its UCMR2 list, EPA is now facing challenges from national drinking water groups over a proposal to force removal of nitrosamines from drinking water...To satisfy federal requirements that classify certain stormwater infiltration devices, such as rooftop runoff infiltration systems, as Class 5 underground injection systems, DWQ now requires the owner of the device to complete a simple form available from the DWQ Aquifer Protection Unit...To assist commissioners in understanding their new obligations for approval of fiscal notes, at its July meeting, the EMC will hear a presentation on the 2011 regulatory reforms by state environmental and budget staff...Attorneys for the largest poultry facility in North Carolina, Rose Acre Farms, have filed an appeal in Superior Court, thus redirecting the litigation over a controversial stormwater permit away from administrative courts...EPA has accepted North Carolina's recommendations for its ozone non-attainment boundaries, which include all of Mecklenburg County and portions of Cabarrus, Gaston, Iredell, Lincoln, Rowan, and Union counties, a more narrow region than first proposed.


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NCLM & State Government Environmental Meetings and Events