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NCLM News & Political Report

While most people's political attention is currently focused on the races for November's election, the League Government Affairs staff members are looking beyond November to post-election activities and issues. Within two months of the election, both the state legislature and Congress will take actions that could significantly impact municipalities.

Therefore, the League staff is already engaging in legislative conversations with a post-election time frame. Significant efforts affecting environmental issues include:

  • Involvement with the ERC. The legislative Environmental Review Commission (ERC) meets between legislative sessions to flesh out issues for consideration in the upcoming session. The next legislative session convenes January 30, and the ERC will hold its first meeting on October 11. While commission members will likely suggest a myriad of topics to consider in the months before January 30, we expect discussion of a significant overhaul of the state's water supply statutes.
  • Outreach to legislators. League staff members have hit the road to meet with legislative candidates and returning legislators. These meetings offer an informal way to emphasize priority issues for the League and build support for those goals. The League will also formalize a group of business leaders to supplement these outreach efforts, with a focus on the importance of healthy, viable cities for our state's economic development.
  • Advocacy goals process. Leading up to the League's day-long Advocacy Goals Conference on January 24, the membership's policy committees are holding almost weekly meetings to sift through goal suggestions and make recommendations for the membership's consideration at the January conference. Two of these committees will evaluate environment-related goals: the Regulatory Action Committee and the Planning & Environment Legislative Action Committee.

In addition, the League will work with its partner organization the National League of Cities to ensure the protection of municipal revenues and programs affected by the federal budget negotiations that will take place after the elections through the "sequestration" process. This process, a result of failed congressional budget negotiations last year, will result in an automatic $100 billion cut to federal operations on January 2 if lawmakers do not reach another agreement beforehand. Such an agreement would come after the November elections.

For environmental programs, sequestration would mean an estimated $700 million cut to EPA's budget, according to a report from the White House Office of Management and Budget last week. This preliminary estimate would include grant programs to the states, potentially cutting funding for positions within DENR and funds to the state's share of water, wastewater, and stormwater grant programs.


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Dissent Recedes with Acceptance of Mercury Plans

In contrast to a contentious, protracted debate over the state's proposed mercury TMDL plans in July, members of the N.C. Environmental Management Commission (EMC) accepted the plans with a near-unanimous vote Thursday. While still expressing doubts over the need for the plans, commissioners recognized that the plans offered the only path toward wastewater permitting relief. Discussions with officials in the U.S. Environmental Protection Agency (EPA) Region 4 office after the July meeting yielded no alternatives.

The League supported the Commission's vote to approve the plans. Due to EPA's inflexibility, approval of the plans offered the only permitting relief available to wastewater facilities.

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

Wastewater dischargers -- both municipal and industrial -- were the only two classes of permit-holders targeted by a wastewater permitting strategy. In this TMDL, DWQ estimated that wastewater dischargers contributed two percent of the mercury load to the state's waters, while airborne mercury that reached the ground via rainfall contributed the remaining 98 percent. All the same, permitted sources of mercury air emissions were not affected under these plans, unlike wastewater dischargers.

Ongoing Concerns with Proposal

In past debates on the proposed mercury TMDL plans, EMC commissioners voiced major concerns with the proposals, including:

  • The proposals were based on a decision to classify all waters as impaired for mercury without supporting data;
  • Waters classified as impaired for mercury sent the wrong message to the public if the waters did not in fact rise to the level of impairment;
  • The regulatory approach that accompanied the TMDL only targeted a small percentage of contributions to the impairment -- wastewater dischargers;
  • Approval of the TMDL meant that wastewater dischargers would forever be subject to further regulations, which ultimately would not result in unimpaired waters;
  • The strategy placed the onus on the permit-holder to prove no impairment existed;
  • EPA's inflexibility for wastewater permits ran counter to its own guidance.

Additional concerns raised in Thursday's discussion included the fact that even if a permit-holder proved its waters were not impaired for mercury, it would still be subject to the permitting strategy and overall statewide cap on mercury dischargers.

Relief for Wastewater Dischargers

While acknowledging the philosophical concerns held by many EMC members over this proposal, the League ultimately supported approval of the mercury TMDL and wastewater permitting strategy because a denial would have forced strict mercury permit limits for wastewater dischargers.

As a result of the EMC's action, many municipal wastewater facilities will have more flexibility in their permits for mercury discharges. In addition, several dozen facilities will implement mercury minimization plans, a standard method to control mercury discharges in wastewater. The League will work with DWQ to ensure that these minimization plans do not represent a burden for facilities that do not exceed mercury discharge limits.

Also, as an outgrowth of the EMC's vote on the mercury TMDL, commissioners recognized a need to examine the decisions that set the course for this TMDL in the first place. Immediately after approving the mercury TMDL and wastewater permitting strategy, commissioners voted to receive more comment on how it might oversee development of the state's impaired waters list. Decisions regarding impaired waters lay the foundation for TMDLs such as this one. Read more about this important second vote in "Commission Nudges Toward Allowing Sunshine on Impaired Waters List," below.


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Commission Nudges Toward Allowing Sunshine on Impaired Waters List

The state's top environmental regulatory panel took another incremental step toward oversight of the state's list of impaired waters in a unanimous vote Thursday. The proposal to accept public comment on whether the N.C. Environmental Management Commission (EMC) should assume oversight of the state’s 303(d) list – its name in the federal Clean Water Act – met no resistance from commission members or state water quality staff.

Disagreement came only in whether the Commission needed to receive public comment on this issue in the first place. Already, N.C. statutes grant the EMC this authority, and some commissioners pointed out that the vote amounted to asking the public whether the EMC should follow its existing laws. Despite the concerns over the necessity of public comment, commissioners overwhelmingly supported the initiative.

Actions now undertaken solely by state water quality regulators in assembling the 303(d) list of impaired waters represent a large area of regulation of municipal operations. Further, the decisions made in creating the list are not currently overseen or approved by any political body, despite the sometimes large regulatory impact of those decisions. Due to the outsized impact of these decisions, the League has long advocated for EMC oversight of the 303(d) listing process and the resulting water body clean-up plans.

Section 303(d) of the federal Clean Water Act requires states to evaluate the health of their waters and “list” those exhibiting impairments on the 303(d) list. Using a five-category system, federal law requires states to categorize every water segment in the state, updating the list every two years. Through the process, states assign water segments labels ranging from “no impairment” to “insufficient information” to “impairment.”

Impaired waters land in either Category 4 or Category 5, which results in a “pollution diet” for the affected watershed, usually in the form of a Total Maximum Daily Load (TMDL). Local governments, as the holders of wastewater and stormwater discharge permits, bear responsibility for reducing their discharges to waters under a TMDL – often a costly requirement.

The League's comments on the 2012 iteration of the 303(d) list focused primarily on increased transparency in the listing process and encouraged the EMC to take a more active oversight role in development of the 303(d) list. When more details of this latest opportunity for comment emerge, the League will reaffirm and expand upon those comments. (Read a summary of the League's past comments in this March 2012 EcoLINC article.)

During Thursday's discussion, state water quality staff said their current process, leading up to the next 303(d) list in 2014, could accommodate a vote on the EMC assuming oversight of the 303(d) list as late as January.


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Natural Gas Commissioners Cover Basics of Public Service

NOTE: This article originally appeared in the League's advocacy blog on September 7.
 
In its initial organizational meeting Sept. 6, members appointed to the newly-created N.C. Mining & Energy Commission (MEC) received counsel from state attorneys and environment officials regarding basics of their public service: state public records and open meetings laws, ethics laws, rulemaking procedures, and their task list from the N.C. General Assembly. The MEC, created this summer by legislators with Session Law 2012-143, will develop the regulations to allow natural gas extraction in North Carolina.
 
Questions posed by commissioners reflected their awareness of the controversial nature of their work. Meeting just two months after a dramatic veto override vote by the General Assembly, MEC members vigorously sought to understand their obligations to conduct their business publicly, in accordance with the state's public records and open meetings laws. This discussion took up nearly one-third of the meeting time.
 
The meeting also covered other topics. In a presentation by state environmental regulators regarding the areas for which the General Assembly has directed the MEC to write rules, conversation briefly touched on the hot-button issue of local authority to regulate the natural gas extraction industry.
 
Commissioners asked for clarification on their role in making recommendations to legislators on the issue of local authority. Under the law that legalized natural gas extraction, the MEC will ultimately make a recommendation to the General Assembly on the issue of local authority.
 
Legislators created this process after initially proposing to ban any local government restrictions on the industry. Instead of a total ban, legislators voted to create a workgroup to make recommendations on the issue. The workgroup will include the League, the N.C. Association of County Commissioners, and the N.C. Department of Environment and Natural Resources. Recommendations will go to a new legislative panel, the Joint Legislative Commission on Energy Policy.
 
Next steps for the MEC, which will meet next on September 28, include election of a chair, formation of committees, and establishing a regular meeting schedule. For opponents of natural gas extraction, the fight will now likely move to challenging the ability of MEC members to vote on any proposed regulations, based on ethics/conflict of interest statutes.

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Not a Rule, Not Guidance...EPA has a New "Vision" for TMDLs

This year has seen the federal Clean Water Act (CWA) turn forty and states develop the 50,000th waterbody clean-up plan, known as a "Total Maximum Daily Load" (TMDL) after its name in the CWA. The evolution of the CWA and its main water quality improvement tool served as the backdrop for a change in philosophy in the TMDL program. And now, the U.S. Environmental Protection Agency (EPA) has memorialized this philosophical shift in a draft "vision" document for the program's future.

The draft vision reflects lessons learned since the widespread development of TMDLs spurred by 1990s litigation. Instead of focusing on developing prodigious numbers of TMDLs across the nation, the proposal calls for states to instead:

  • Prioritize waters. The vision encourages states to target their resources toward priority watersheds, for either restoration of impaired waters or protection of healthy waters.
  • Assess streams. The vision asks states to make site-specific analyses of their waters.
  • Protect unimpaired waters. The vision promotes state actions to protect existing healthy waters.
  • Explore alternatives. The vision indicates EPA's willingness to accept alternative adaptive management strategies, especially if nonpoint sources contribute to a water's impairment.
  • Engage stakeholders. The vision reflects a belief that including affected entities increases any clean-up strategy's chances of succeeding.
  • Integrate other laws. The vision points states to other legal authorities they may use to control water pollution, including the Safe Drinking Water Act, the Clean Air Act, and the "Superfund" law.

Because it is not a rule, EPA cannot use the vision document as the basis for any enforcement actions. Still, the document serves as a guide to EPA's overall TMDL program philosophy.

Vision is Timely for N.C. Efforts

The vision, developed by EPA and the Association of Clean Water Agencies, an organization representing state water quality regulators, comes as the N.C. Environmental Management Commission (EMC) embarks on an effort to reform TMDL development and the data-driven process underpinning TMDLs, known as the 303(d) list after its section in the CWA.

The League has actively encouraged this regulatory reform and has suggested many of the program reforms contained in the EPA vision document, including targeting resources toward priority watersheds. Also, the League has in the past supported alternative adaptive management strategies, such as the one now underway for Little Alamance Creek.

Providing Context for Nutrient Management

This vision also likely will guide the approach toward nutrient management plans across the country. Nutrient plans, typically based on TMDLs, address what EPA has described as its top water quality priority. In response, the vision document appears to track a similar "nutrient vision" document offered by EPA in March 2011. Like the TMDL vision, the EPA nutrient document calls for prioritization of high-priority watersheds, use of alternative adaptive management approaches, and participation of all affected stakeholders. 

In addition, the TMDL vision document's emphasis of protection of unimpaired waters has played out in North Carolina recently with respect to a failed statewide nutrient management strategy. In 2010, the EMC rejected a statewide plan to regulate the flow of nutrients to waters in unimpaired watersheds. State regulators developed the plan without stakeholder input, and EMC members agreed with the League that it did not represent a viable approach to addressing nutrient issues in the state.

In future discussions of nutrient management strategies in North Carolina -- expected to be outlined later this fall -- the League will urge consideration of the tenets within the EPA TMDL vision document.


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Regulatory Briefs

On October 16, the N.C. Supreme Court will hear oral arguments in the Piedmont Triad Regional Water Authority appeal, a legal battle that will likely clarify the parameters of the state’s riparian water law...With the final High Rock Lake watershed model complete, DWQ expects to have a draft of the lake model ready for review by the end of the month...The state has set a public comment period until October 1 for dozens of MS4 stormwater permits, including all six Phase I permit renewals, nine Phase II permit renewals, and nine new Phase II permits...Wrangling over the contents of a fiscal note between DWQ and OSBM has delayed the EMC's consideration of the flexible buffer mitigation rules proposal...Following a legislative regulatory reform directive to repeal all unnecessary rules, the EMC repealed rules regarding the long-defunct Clean Water Bond Act...A group of local governments that includes the cities of Henderson and Oxford is moving ahead with its Kerr Lake IBT request, only awaiting completion of an environmental impact statement and the hydrologic modeling of the Roanoke Basin...EPA will accept comment through October 11 on proposed methods for utilities to distribute their annual drinking water consumer confidence reports electronically rather than in paper form.
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NCLM & State Government Environmental Meetings and Events