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NCLM News & Political Report

After sifting through election returns to determine the political landscape in North Carolina for the next two years, the League staff has identified trends and important points for those concerned about environmental issues and municipal government. Read on for the "Top 5 Take-aways" on: (1) N.C. races, (2) N.C. Department of Environment and Natural Resources (DENR) and the N.C. Environmental Management Commission (EMC), and (3) U.S. Congress and U.S. Environmental Protection Agency (EPA).

Also, read the League's recap of election results on the League LINC blog.

Top 5 Take-aways: N.C. RACES

  • REDISTRICTING IMPACTS. Under the new redistricting maps in place for the first time this year, Republicans stretched their majorities in both chambers of the N.C. General Assembly and the state's congressional delegation. This graphic shows the dramatic difference in partisan make-up at all levels of N.C. government between 2008 and 2012. North Carolina's voting patterns reveal a true swing state between the two major parties, but the partisan tilt of the legislative and congressional district maps now clearly tips the hat in favor of Republican candidates. Three sets of statistics from this election clearly demonstrate the effect of redistricting on election outcomes.
    • First, 2.19 million North Carolinians voted for a Democratic congressional representative, while 2.12 million voters chose a Republican congressional candidate. However, Republicans will hold at least nine of the state's thirteen congressional seats.
    • Second, the new maps contributed to increased Republican majorities-- a gain of one senator in the 50-member N.C. Senate, and nine representatives in the 120-member N.C. House.
    • Third, the maps created relatively safe districts for current Republican incumbents. Only five incumbent legislators lost in this election, four Democrats and one Republican.
  • MAYORS WIN. Four current and former mayors were elected to the General Assembly: Rockingham Mayor Gene McLaurin, former Burlington mayor and current council member Steve Ross, Cornelius Mayor Jeff Tarte (scroll down to Senate District 41), and Chadbourn Mayor Kenneth Waddell
  • NEW LEGISLATORS DOMINATE. Nearly two-thirds of legislators serving in 2013-14 will have two or less years of experience. In the Senate, the figure is 60 percent. In the House, the figure is 57.5 percent.
  • NO MCCRORY COATTAILS. According to an initial analysis of the N.C. election results done by the N.C. Free Enterprise Foundation, the presence of Governor-elect Pat McCrory on the ticket did not boost other Republican candidates down the ballot. McCrory emerged as the clear winner, earning 54.7% of the vote. Tellingly, he garnered a larger share of votes than any other Republican running statewide, including presidential candidate Mitt Romney. McCrory's larger share of the popular vote than Romney's marks the first time in North Carolina's history that the winning gubernatorial candidate received more votes than the presidential candidate who won North Carolina.
  • MONEY FOLLOWS REPUBLICANS. As the majority party, Republican legislative leaders far exceeded the total amount of donations brought in by their Democratic counterparts. For example, Senate President Pro Tempore Phil Berger donated $1 million to the Senate Republican caucus in the third quarter, while his counterpart, Minority Leader Martin Nesbitt, transferred $68,350 to the Senate Democratic caucus. SuperPACs also gave an outsized amount of money in support of Republican candidates in this election. Of the $14 million spent in North Carolina by SuperPACs, Republican-leaning groups outspent Democratic-leaning groups by a 2-1 margin, according to the Institute for Southern Studies. Almost one-third of N.C. SuperPAC dollars were spent by the Republican Governors Association in support of McCrory.

Top 5 Take-aways: DENR, EMC

  • DENR RETIREMENTS. With a new administration leading DENR, staff retirements will likely see an uptick. Already, two top DENR staffers have announced retirements effective December 31: Assistant Secretary for the Environment Robin Smith, and Planning Section Chief Alan Clark. The League wishes both Smith and Clark well on their next venture.
  • EMC LEADERSHIP CHANGES. Every governor chooses the chair of the EMC, traditionally chosen from the gubernatorial appointments. Because none of the current gubernatorial appointments to the EMC were appointed by a Republican governor, it is likely that McCrory will look to one of the six commission members appointed by the Republican-majority legislature to lead the EMC. Such a change could happen once McCrory is sworn in as governor in January.
  • DENR LEADERSHIP. In the budget approved by the state legislature this summer, lawmakers expanded the number of state employees classified as "exempt" from 400 to 1,000. This class of employees is made up of positions that "serve at the pleasure of the governor." Spread out over eight state agencies -- including DENR -- these exempt positions could reach farther down into an agency's hierarchy than in the past. Therefore, big changes in DENR leadership are likely ahead in the coming months. While Raleigh politicos are buzzing about possible Secretary and Deputy Secretary candidates, announcements are not expected until at least December.
  • MCCRORY INITIAL PRIORITIES. McCrory's transition team will have the first opportunity to influence the new administration's environmental policies as it seeks an appointee for DENR Secretary and other leadership positions. And according to WRAL (Raleigh), the transition team will also review the agencies' organizational structures for opportunities to reorganize and consolidate. DENR was an agency specifically cited by McCrory for this extra scrutiny, along with the departments of commerce and transportation. 
  • LEGISLATIVE POLICY PRIORITIES. Legislative leaders have prioritized regulatory reform as a policy initiative in the past two years, from an overhaul of the regulatory process to changes in the state's environmental laws. Leaders now indicate that they will look to business owners, represented most prominently by the N.C. Chamber, for suggestions of environmental laws to reform. Already, the League is working with the Chamber and other stakeholder groups on a package of reforms to the state's water supply laws.

Top 5 Take-aways: Congress, EPA

  • EPA RETIREMENTS. As with DENR and other state agencies, federal agencies will likely see a turnover in leadership following the election. Current EPA Administrator Lisa Jackson is widely rumored to step down, with Politico reporting possible replacements could include current deputy EPA Administrator Robert Perciasepe, current top EPA air pollution official Gina McCarthy or former Clinton White House aide Ian Bowles, who ran the energy and environmental department in Massachusetts.
  • EPA FUNDING. If Congress and President Obama do not reach a deal that avoids the budget cuts and tax hikes that would otherwise take effect in January, EPA funding will lower from $8.4 billion to $7.7 billion. The reductions would include $293 million in cuts to grant programs that fund positions in state environmental agencies like DENR. Regardless of whether the sequestration cuts take effect, increases to EPA's budget such as those when Obama first took office are unlikely. 
  • CONGRESSIONAL PRIORITIES. Given that the partisan make-up of Congress did not change significantly from the past two years, Congress is likely to carry forward its focus on past environmental priorities. Issues of interest to municipalities include: Clean Water Act jurisdiction guidance and an infrastructure financing tool known as WIFIA.
  • EPA: SHORT-TERM. In the short-term, many EPA watchers expect the agency to issue several large rules and guidance that had been delayed pending the outcome of the election. Issues of interest to municipalities include: Clean Water Act jurisdiction guidance, finalization of Florida's numeric nutrient criteria rule, and a draft report of the impacts of natural gas extraction on drinking water.
  • EPA: LONG-TERM. With Obama winning a second term, EPA will now likely press ahead with other controversial rulemakings in the coming years. Of most importance to municipalities is a proposed national post-construction stormwater rulemaking, now scheduled for release in June.

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EMC Agrees to Oversee Impaired Waters List

The N.C. Environmental Management Commission (EMC) approved a public process Thursday whereby it would oversee the development of the state's list of impaired waters. The vote capped an eighteen-month-long campaign by the League and other stakeholder groups seeking the new process. EMC oversight of development of this list has been a top regulatory priority for the League.

In comments submitted last month, the League asked the EMC to institute a robust public process for development of the list and to affirm the data guidelines and other decisions used to list waters. The League also made multiple requests of the EMC to become more involved in these decisions of enormous regulatory consequence over the past eighteen months:

The state's 303(d) list, named after Section 303(d) of the federal Clean Water Act, is updated every two years. For each two-year cycle, the federal law requires states to evaluate the health of their waters and “list” those exhibiting impairments. Impaired waters most often become subject to a “water 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.

Given the consequences of having a water body included on the 303(d) list in a municipality's jurisdiction, the League had urged a public forum to discuss the adequacy of the "use assessment methodology" employed to evaluate stream conditions. State regulators use the methodology along with water quality data and standards to determine whether or not waters are impaired. Previously, decisions regarding the methodology were made by N.C. Division of Water Quality (DWQ) staff members without guidance or input from the EMC and with only limited comment from the public.

Read a summary of comments submitted by other stakeholders.

New Listing Process

Under the process approved by the EMC, for the next 303(d) list, DWQ will present the use assessment methodology to the EMC at its January meeting. At that point, the EMC will determine if it wants changes. Once the commission approves the methodology, DWQ will use it as a guide for its data collection and analysis. Ultimately, DWQ will propose the 2014 list of impaired waters, seeking public comment in March 2014.

Future 303(d) list cycles will follow the same process, except DWQ will issue the use assessment methodology for public comment in May of even-numbered years, with EMC consideration in September. In practice, that means each use assessment methodology comment period will immediately follow the April 1 EPA submission date of the previous 303(d) list.

Comment Now for 2014 List

To take advantage of this new opportunity for input into a significant regulatory process, League members should respond to a public comment period soliciting feedback on the use assessment methodology that will be used for the 2014 303(d) list. This comment period began in September and runs through November 26. The League will submit written comments in response to this request.


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State Regulators to Hear from Public on Nutrient Plan

State water quality regulators told members of the state environment commission last week to expect an open, public process for revising N.C.'s Nutrient Criteria Implementation Plan (NCIP). In North Carolina and across the country, pollution from two nutrients, nitrogen and phosphorus, presents the most urgent yet difficult water quality issue to address. Commission members must ultimately approve any strategies developed pursuant to the NCIP that address nutrient impairments in N.C. waters.

The NCIP is part of an agreement with the U.S. Environmental Protection Agency (EPA) that outlines a work plan for regulators to use in addressing nutrient impairments across the state. Similar work plans, negotiated for all states receiving EPA funding, contain a description of an agency's tasks, timelines, and milestones for development of nutrient criteria.

Specifically, the NCIP is a condition imposed by EPA when it gives states a Section 106 grant, named after the corresponding section of the federal Clean Water Act. In North Carolina, this funding provides the N.C. Division of Water Quality (DWQ) with the majority of its means to conduct monitoring, assessment, and permitting activities. [See the discussion of the effects of a possible federal budget sequestration on this DWQ funding source in "NCLM News & Political Report," above.]

Public Involvement

As an initial step, DWQ will seek public feedback on a draft NCIP next month at a series of meetings held in each region of the state:

  • December 4, 2:00 pm, Archdale Building Ground Floor Hearing Room, Raleigh
  • December 12, Eastern NC (TBD)
  • December 17, Western NC (TBD)

The public meetings are timed to give DWQ adequate feedback on the NCIP prior to its June due date to EPA. In addition, DWQ plans to take the NCIP before the N.C. Environmental Management Commission (EMC) for review in March and then final approval in May. Therefore, DWQ expects to conclude public input on the plan in mid-February.

Dianne Reid, DWQ Standards & Classifications Supervisor, told EMC members to expect the draft NCIP to contain a series of prioritized projects or studies. Staff members from across DWQ sections, as well as the agency's Raleigh Regional Office, have collaborated to propose the projects in the draft NCIP.

The plan's projects would be designed to move the state toward full implementation of nutrient criteria, Reid said. She also said that when designing these projects, DWQ staff would take into consideration information presented at the N.C. nutrient forum held in May, public input, and other nutrient criteria strategies pursued across the country. Specifically, Reid told EMC members that the plan would:

  • Highlight and enhance the state's current nutrient approaches
  • Provide for exploration of site-specific and waterbody type-specific approaches
  • Be balanced, fair, steady, and scientific
  • Provide for exploration of built-in protection and prevention
  • Include review of a variety of possible criteria, including measures of biological response to nutrients as well as measures of the causes of nutrient pollution
  • Involve all stakeholders

Reid also said DWQ would soon publish a website specifically for the NCIP process.

To review all materials related to North Carolina's NCIP, visit this page and scroll to the bottom section titled "What is North Carolina's Nutrient Criteria Implementation Plan?" You may also read general background in this August 2012 EcoLINC article.


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Triennial Review Action to Pick Up in New Year

State water quality officials indicated last week that they are nearing completion of a fiscal note examining the impacts of changes proposed as part of the "triennial review" of surface water quality standards. Officials expect to have the fiscal analysis available in January. Then, officials will seek public comment on the standards, possibly as early as March or April.

The triennial review is a process mandated by the federal Clean Water Act that directs states to review their surface water quality standards every three years. A highly technical scientific process, the review accounts for updated toxicological studies and other research regarding aquatic health in surface waters. In this most recent review, North Carolina has proposed changes to certain metals standards such as cadmium, chromium, nickel, silver, and zinc, as well as other measured parameters such as chlorophyll-a.

Municipalities holding National Pollutant Discharge Elimination System (NPDES) wastewater discharge permits must adhere to surface water quality standards. A complex mathematical exercise translates the standards into permit limits, taking into account the metals and other substances a wastewater system receives from homes and industries that discharge into its collection system. The assumptions made in those calculations determine whether or not a wastewater system (1) must make upgrades, or (2) can accept more wastewater connections from industries and other customers such as residences and businesses.

League Coalition's Analysis Finds Staggering Financial Impacts

When the state first announced these proposed standards changes in 2009, a group of more than 130 League members organized the Municipal Environmental Assessment Coalition (MEAC). First, the coalition commissioned a study of the financial impacts of the proposed changes.

The study's results indicated an enormous potential cost for the nearly 300 N.C. local governments that own and operate wastewater treatment plants. The study estimated that without changes to implementation policies, triennial review compliance costs were between $590 million and more than $6 billion, depending on the treatment method used. The study determined that the only alternative “that can reasonably assure compliance” would collectively cost utilities more than $6 billion over a 20-year period.

The study also looked at sources of heavy metals in a sample of cities and towns that included large cities and small towns and municipalities in all parts of the state. It found that, except in one case, industries were not the source of metals discharges to wastewater systems. Previously, it was assumed that industries were the major contributors and could be required to take additional steps to "pretreat" their waste before discharging it into a municipal wastewater system.

“In the vast majority of cases, industrial users are not contributing metals to collection systems at levels to warrant additional pretreatment," the study stated. "As such, the burden of compliance will essentially be the responsibility of municipalities, and by extension rate payers.”

The League and MEAC will continue their deep involvement in this issue as the public input process picks back up next year. Ultimately, the N.C. Environmental Management Commission will vote on whether or not to accept the proposed changes and fiscal note.

Read background on the state's triennial review process.


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Energy Commission Chair Indicates Minimal Role for Interest Groups

Jim Womack, the new chair of the N.C. Mining & Energy Commission (MEC), stated his preference for a minimized role for interest groups as the MEC begins its task of writing the state's rules governing the practice of natural gas extraction.

Womack's comments came at the Commission's November 2 meeting. At the same meeting, Womack, a Lee County Commissioner, also appointed MEC members to two study groups that would examine issues of concern to local governments.

The discussion over the extent to which the MEC would invite interest groups such as the League into its processes revealed strong differences of opinion between members. Some commission members sided with Womack, expressing worries over managing a high volume of comments that are likely to be emotionally charged, given the intense opposition to the legalization of natural gas extraction earlier this year. Other commissioners pointed out that the N.C. General Assembly passed a law specifically directing the involvement of certain interest groups, including the League as well as industry and environmental organizations, in writing the regulations.

Most commissioners acknowledged the need for clear intentions to involve stakeholders, though, given the tight timeline for rulemaking given to the MEC by the legislature. 

At the end of a long debate over the involvement of stakeholders, commissioners ultimately decided to take up the matter again at their December meeting. The League will request that the Commission follow the example of other major environmental rulemakings and involve stakeholders throughout the process, not just at public comment periods.

League Involvement in Study Groups

The question of stakeholder involvement for the two studies directed by legislators on the topics of local government authority over the industry and appropriate funding to address impacts from the industry will be answered by the chair of each committee conducting the studies, according to a plan presented by Womack at the last commission meeting. State lawmakers directed the MEC to conduct these studies "in conjunction with" groups such as the League. Both studies are due to the legislature by October 1, 2013. The draft DENR timeline anticipates completion of the first study by May and the second study by October.

MEC Commissioner and Sanford City Council Member Charles Taylor is tentatively slated to lead the study group on local government authority. Other MEC members of this study group include Chair Womack, Jonathan Williams, Vikram Rao, and George Howard.

MEC Commissioner and Piedmont Natural Gas executive Jane Lewis-Raymond is tentatively slated to lead the study group on funding levels. Other MEC members of this study group include Chair Womack, Charlotte Mitchell, Charles Holbrook, and Marva Price.

Finishing Organizational Work

The MEC also finished its outstanding organizational tasks at this last commission meeting. Importantly, commissioners chose George Howard as the board's Vice-Chair. Howard is a co-founder and President of Restoration Systems, a private mitigation banking firm. The Commission also voted to accept a finalized set of operating procedures akin to bylaws (see draft here).

At the same time, commission members also provided Womack indications of their preferences for committee service. Initially, the Commission will conduct its work through six committees, in addition to the study group work discussed above. Each committee will have six to seven members.

Looking ahead, with its organizational tasks complete, the MEC will turn its attention to writing regulations pursuant to its work plan and timeline. Going forward, the Commission will likely meet monthly for two days of meetings. The first day, committees will meet, while the second day, the full commission will conduct its business. The MEC next meets December 18-19.

For more background, read past NCLM reports on the legalization of natural gas extraction in North Carolina:


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Regulatory Briefs

Following an affirmative EMC vote to send the rules to public hearing, the consolidated buffer rules package will soon have a formal comment period...NCLM staff, along with DENR Secretary Dee Freeman, met with White House officials last month to continue discussions of federal environmental regulatory reform suggestions...The EMC will meet December 3 to consider a declaratory ruling filed by environmental groups to clarify groundwater regulations in the context of coal ash discharges -- a set of facts that also applies to land application of biosolids...League staff and members attending oral arguments at the N.C. Supreme Court for the riparian water rights appeal October 16 reported that the justices were engaged in the subject, with five of the seven justices asking questions...The EMC delayed a vote on a proposal for groundwater standards flexibility until its January meeting...EPA approved North Carolina's statewide mercury TMDL last month...The EMC finalized the Broad river basin hydrologic model, the first basin of seventeen to win this approval...State stormwater officials have taken recent actions on Phase I and Phase II stormwater permits, issuing six new Phase II permits, renewing nine current Phase II permits, and continuing to address comments for three Phase II communities in the Falls Lake watershed as well as all six Phase I communities...DWQ has issued guidance that provides for reduced monitoring frequencies for certain NPDES wastewater discharges...In a bid to become one of the nation's two EPA-funded nutrient management centers next year, WRRI is soliciting preproposals from researchers by November 19...To address congressional concerns that states and local governments do not spend state revolving loan funds fast enough, EPA issued new program guidance...Economic developers won a key N.C. Superior Court case last week that would allow one of the state's largest poultry operations, the proposed Sanderson Farms facility in Nash County, to operate; opponents, citing concerns over public drinking water supply contamination, intend to appeal...EPA released its Nitrogen and Phosphorus Pollution Data Access Tool (NPDAT), a web-based GIS program that allows users to view a wide variety of nutrient data nationwide, including waters listed on the 303(d) list as well as USGS data.
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