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NCLM News & Political Report

In October, this column described all the ongoing legislative activity in Raleigh, despite the fact that the legislature is months away from its session. In October, we also described easy ways the League Government Affairs staff keeps you up-to-date on these happenings.

In addition to keeping you informed, the League has supported hundreds of League elected and appointed officials in taking proactive steps to prepare for expected legislative and regulatory fights in the next few years. This significant amount of "off-season" membership activity has solidified issue positions and strategies, and in most cases will place the League in the driver's seat on top-priority municipal issues.

First-Ever Regulatory Goals

For the past year, members of the League's Regulatory Action Committee (RAC) have met over a dozen times to debate language for the League's first set of strictly regulatory goals. These goals covered topics including water quality, stormwater, water resources, and regulatory reform. The League's Board of Directors prioritized development of these regulatory goals along with the membership's traditional process of developing legislative goals.

In the end, the RAC recommended twenty-three ideas for consideration by the League Board and membership. After the Advocacy Goals Conference on January 24, many of these goals will end up included in the League's "Municipal Advocacy Goals" package, a to-do list of top-priority goals for the League members and staff to pursue in the next few years.

If you are a League member and would like to be a part of future regulatory goal discussions, please consider signing up to participate on the RAC by emailing Lori Moye.

Workgroups Galore

Also since the end of the Short Session in July, League members have addressed individual issues through workgroups. These workgroups have tackled thorny and persistent municipal issues that are expected to be front and center next year, including:

  • Water supply
  • Nutrients
  • Jordan Lake Rules
  • Growth tools without city-initiated annexation rights
  • Permit streamlining
  • Extra-territorial jurisdiction (ETJ) planning and services
  • Natural gas extraction
  • Billboard regulation
  • Tax reform

Issue Positions

The RAC, described above, has worked alongside the League's three legislative action committees (LACs). Like the RAC, the LACs spent this fall debating policy goal positions to recommend for consideration by the League Board and membership. Having positions truly generated and vetted by the membership, through a rigorous policy development process, lends validity to the policies advocated by League members and staff during public debates.

The fruits of the committees' labor will come to bear at the Advocacy Goals Conference on January 24. At that conference, each attending municipality will vote up or down on all goal proposals. The resulting package will represent the top-priority legislative and regulatory goals of the League membership.

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N.C. Cities Turn Out for Nutrient Discussions

Wastewater and stormwater representatives from central North Carolina cities were strongly represented at a public meeting regarding future steps for nutrient regulation in the state held in Raleigh Tuesday. State water quality regulators organized the meeting, the first of three to be held across the state, to present an overview of possible ways to measure nutrient impairment of waters across the state. (For more background on this effort, read “State Regulators to Hear from Public on Nutrient Plan” in the League’s November edition of EcoLINC.)

City representatives formed a strong contingent at the meeting and were able to ask questions of regulators. Their presence reinforced the high priority League members place on the issue of nutrient regulation. The next two public meetings will take place in Huntersville (tomorrow) and Wilmington (December 17). Please consider sending representatives from your city or town to one of those meetings (RSVP and meeting details here).

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. Past N.C. regulations to control nutrients include the Jordan Lake Rules, Falls Lake Rules, Neuse Rules, Tar-Pamlico Rules, and Randleman Rules. While those strategies cover waters in the central and eastern parts of the state, the N.C. Division of Water Quality (DWQ) is currently developing models to support nutrient regulation of High Rock Lake in the western Piedmont area of the state.

Federal, State Regulators Push the Issue

The U.S. Environmental Protection Agency (EPA) is driving this latest push toward the so-called "numeric nutrient criteria" that have caused extreme controversy in Florida and elsewhere over the past two years. In response, DWQ must revise the state's Nutrient Criteria Implementation Plan (NCIP), part of an agreement with 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.

In a presentation at the Raleigh meeting, DWQ staff stated their preference to continue assessing the response of aquatic life (response variables) when determining the impairment status of a water body. However, they declined to discuss specifics of this approach, instead urging input via a public comment period that runs through February 4. The League will offer comments on this issue and many other aspects of nutrient regulation.

In response to repeated questions about specific paths the state may choose to pursue, DWQ staff reiterated that they have not made decisions about the approach it may ultimately take. Instead, DWQ staff referenced six overarching priorities for the state to explore throughout this effort:

  1. Improve North Carolina's current approach
  2. Consider goals & targets
  3. Include site-specific and waterbody type-specific approaches
  4. Be scientific, balanced, and fair
  5. Be proactive and integrative
  6. Provide for involvement of stakeholders

DWQ staff also acknowledged that the NCIP projects must provide a way for the state to justify why it chose any given approach to nutrient regulation.

Because the NCIP projects could ultimately result in further rulemaking proposals, the N.C. Environmental Management Commission will vote to accept the NCIP next spring, offering several other opportunities for public input. DWQ will then submit the plan to EPA in mid-June. Once the plan is approved, the state will begin the projects listed in its plan.

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State Formalizes Stormwater Management "Low Impact Development" Approach

The N.C. Division of Water Quality (DWQ) formalized its commitment to a "low impact development" (LID) approach for stormwater management last month.

In contrast to traditional stormwater controls such as pipes or retaining ponds, LID techniques decentralize stormwater controls, instead favoring infiltration of water on-site. In this way, LID mimics nature to manage stormwater as close to its source as possible. LID is an overarching approach that is often implemented with green infrastructure techniques such as trees and tree boxes, rain gardens, green roofs, vegetated medians, pocket wetlands, rain barrels, permeable pavement, amended soils, and bioretention cells.

The new DWQ commitment to LID, detailed in this document, now serves as the state's preferred approach for stormwater management when properties are developed, redeveloped, or retrofitted. Aiming to improve water quality and flooding results, the new approach recasts traditional stormwater control thinking. Instead of having traditional techniques as the "go-to" methods for controlling stormwater, DWQ will now view LID as the preferred approach.

Still, under this new approach, the agency will allow traditional stormwater controls if they meet the state's BMP performance standards, and they provide water quality protection equivalent to LID or LID practices are not practical on the site.

How Will DWQ Adjust to LID?

In the document outlining its commitment to LID, DWQ lists three concrete actions it will take to shift stormwater management practices and encourage an LID approach:

  1. NON-DWQ GUIDELINES. Foster partnerships to identify non-agency policies, procedures, programs, technical guidance, ordinances, and rules that affect or impede the LID approach.
  2. EDUCATION. Work with partners to identify and promote educational opportunities, outreach activities, and public involvement in LID issues.
  3. DWQ GUIDELINES. Similar to #1, except with a focus on agency guidelines rather than those of other governmental units or organizations.

The shift to an LID mindset has gradually evolved within DWQ. Over time, the agency integrated LID practices and techniques in its main stormwater best management practices (BMP) guidance document, the BMP manual. The agency has also developed an LID Guidebook to assist developers, technical consultants, and local governments in understanding the expectations for LID-designed BMPs.

In addition, to incentivize the switch to the LID approach, DWQ now offers express permit review of developments with LID practices at half the cost of those with traditional stormwater management practices. The agency also allows developments following LID to use an LID spreadsheet in lieu of traditional supplement forms when applying for permits.

Municipal Implementation of LID

Cities and towns work in partnership with DWQ to oversee stormwater management practices in their jurisdictions. Therefore, working within DWQ's preferences, cities and towns will likely begin to incorporate LID as the standard stormwater control approach within their own stormwater programs.

Following DWQ's established LID criteria, many local governments with approved LID programs will determent whether or not a proposed development meets LID expectations. Some N.C. municipalities already have experience in reviewing projects through an LID lens -- North Carolina currently mandates the use of LID for development in Goose Creek, Waxhaw Creek, and Six Mile Creek watersheds.

The transition from traditional stormwater management approaches to one guided by LID criteria does face challenges. Studies show that LID can be cost effective, yet some N.C. local governments have noted that LID practices can cost more than traditional treatment. In addition, DWQ's recent LID document lists these other impediments to LID that implicate local government practices:

  • Local ordinances with requirements for impervious surface such as parking, curb and gutter, street widths/lengths, cul-de-sacs, sidewalks and driveways
  • Land use requirements such as residential lot setbacks and prohibitions on shared driveways
  • Minimum parking space requirements for developments
  • Flood control requirements such as ponds designed to detain large storm events
  • Difficulties in securing access to private property to inspect and maintain stormwater controls

EPA Embraces LID

The U.S. Environmental Protection Agency (EPA) has embraced the LID approach as well. With its upcoming national post-construction stormwater rulemaking, EPA has signaled its intent to mandate an LID approach to stormwater management. This November 7, 2012, EPA presentation forecasts several ways the rule will incorporate LID, such as incorporating stormwater controls in site design, including preserving vegetation and reducing impervious cover, and integrating green infrastructure practices into the site design. The rule proposal will also likely require municipalities to upgrade their ordinances to reflect the LID approach to stormwater management.

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Water Supply Continues to Occupy Interest of Legislative Panel

A legislative panel that oversees the state's environmental activities continued to receive more information regarding water supply issues at its meeting last month. Duties of the legislative Environmental Review Commission (ERC), a standing panel that meets between legislative sessions, include oversight of all state environmental boards and programs as well as review of changes to federal environmental laws.

Importantly, the ERC may propose bill language on any topic related to the environment. Generally, such proposals stem from presentations received by the commission during its meetings in between legislative sessions. Therefore, information given to the commission by presenters is important to understanding the possible directions any future water supply legislation might take.

Ecological Flow

At the November ERC meeting, legislators again heard from Tom Reeder, Director of the Division of Water Resources (DWR), N.C. Department of Environment and Natural Resources. Reeder focused on the effort to develop ecological flow data, building on a more general outline of the state's water supply activities he gave to the group in October (read more on Reeder's October presentation in "Water Supply Concerns Top Legislative Panel's Agenda" from the October 2012 edition of EcoLINC).

Throughout his presentation, Reeder stressed that the legislature would make any decisions about how to use ecological flow conclusions resulting from DWR's ongoing hydrologic modeling effort. He stated that the division would only input the data into its models, informing legislators if the models revealed a weak spot or conflict between water uses. Through their public discussion following the presentation, legislators did not indicate if they wanted to make further changes to this area of state law.

Importantly for municipalities that withdraw water from a run-of-the-river intake, Reeder flagged this category of uses as the sector most likely to be impacted by any future decisions related to ecological flow. Reeder said 95 of the state's 553 public water supplies use a run-of-the-river intake and therefore have no established flow standards. Those with groundwater withdrawals would not be affected by an allocation to ecological flow, Reeder said.

Public Water Supply Rights

Legislators also received a detailed update of the N.C. Supreme Court's consideration of the L&S Water Power v. Piedmont Triad Regional Water Authority case. The state's high court heard oral arguments in October in the suit, which has large implications for public water supply rights.

Lower court rulings in this litigation had conferred an ownership right to the flow of water by hydroelectric power generator owners downstream of the Randleman dam. The lower courts then ordered the Authority, as owner of the Randleman dam, to pay compensation to the hydroelectric power generators for a taking of the downstream water. The Authority, backed by an amicus brief submitted by the League, argued that longstanding N.C. water law does not confer water ownership rights on owners of riparian lands, which are those lands immediately adjacent to water bodies. In addition, the Water & Sewer Authority of Cabarrus County made similar arguments in its amicus brief, authored by ERC member Sen. Fletcher Hartsell (Cabarrus).

Legislators focused on the scattershot nature of leaving determinations of water rights to judicial decisions. Several stated a preference for addressing this uncertainty at the legislative level. They also expressed concern for the general lack of strong riparian water rights for public water supplies, a top water supply concern of the League membership as well.

Uranium Mining

A third presentation related to the threats posed to Kerr Lake from potential uranium mining operations upstream of the lake in Virginia. The lake serves as a primary drinking water supply and recreation spot for hundreds of thousands of North Carolina and Virginia residents. The Virginia General Assembly is likely to consider whether to legalize uranium mining before it adjourns in February.

Reeder told the ERC that hazards from uranium mining stem from the practice of storing mining waste products, or “uranium tailings,” in surface storage ponds. These hazardous wastes remain radioactive for thousands of years. Unlike uranium mines in the comparatively arid western states, any mines in the eastern U.S. are vulnerable to heavy rains and hurricanes. Reeder said that a strong rain event could potentially wash the radioactive waste into Kerr Lake – a catastrophe that could entail years of cleanup.

In their discussion of the issue, ERC members expressed fears about the grave risks posed to North Carolinians, who would not see the same benefits from any potential mining as Virginians. The legislators also planned a letter to the N.C. congressional delegation outlining their concerns and said they would recommend a resolution of opposition for the full N.C. General Assembly to approve when it reconvenes next month. Already this year, the N.C.-Va. Roanoke River Basin Bi-State Commission sent a resolution in opposition to the proposed mining activities.

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EMC Declines Ruling with Potential Land Application Impacts

The N.C. Environmental Management Commission (EMC) voted last week not to offer an interpretation of groundwater rules that had the potential to negatively impact land application practices of local governments across the state. Due to these potential impacts, the League's written submission for the proceeding encouraged the EMC to reject the request for interpretation made by a consortium of environmental advocacy organizations.

[This News & Observer (Raleigh) article, while misrepresenting the clean-up responsibilities imposed under the state's groundwater protection program, discusses the League's involvement in the proceeding.]

The organizations' request came in the form of a declaratory ruling, a rarely-used tool in the N.C. Administrative Procedures Act that allows a party to ask a regulatory body -- in this case, the EMC -- to offer an interpretation of its rules as applied to a given set of facts. In the environmental groups' request, the groups sought the EMC's interpretation of its groundwater rules as the rules related to electric utilities' practice of storing coal ash in surface ponds. More specifically, the request alleged that older ponds must take immediate corrective action if their discharges contained a concentration of a regulated substance in excess of the state's groundwater standards.

Importantly to local governments, the environmental groups argued that older facilities did not have the benefit of a compliance boundary. Simply, a compliance boundary delineates an area within which a facility does not have to meet groundwater standards. Instead, the facility must meet the standards at or beyond the boundary. Many other state environmental waste management programs, such as those regulating land application of biosolids and landfills, interpret the concept of compliance boundaries in the same way as applied in the context of coal ash ponds.

Therefore, while not directly targeted by the environmental groups, the practice of land application of biosolids was potentially threatened by this request for declaratory ruling. Biosolids are the nutrient-rich organic materials resulting from the treatment of the residue generated during the domestic wastewater treatment process. After being treated to strict standards, biosolids are safely recycled and used as fertilizer when "land applied" -- or irrigation sprayed -- on agricultural fields.

If the EMC had not declined to rule in favor of the rule interpretation offered by the environmental organizations, the state's interpretation of compliance boundaries for land application practices would have changed to conform with the requested treatment for coal ash ponds. This change in interpretation could have increased costs for some wastewater treatment operations.

In light of the EMC ruling, the environmental groups have a right to appeal the decision through the state's court system. In addition, the N.C. Department of Environment and Natural Resources (DENR) and other stakeholders may pursue legislative or rule changes to clarify the law and preserve DENR's long-standing regulatory approach to the groundwater rules.

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Impaired Waters Determinations Need More Detail, Flexibility

NOTE: This article originally appeared in the League's advocacy blog on November 29.

A document outlining the process of making impaired waters determinations needed more detail and flexibility, the League wrote in comments submitted November 26. The League's suggestions came in response to a public comment period on the document, called the "use assessment methodology." State regulators use the methodology along with water quality data and standards to determine whether or not waters are impaired.

Given the consequences to municipalities of having a water body included on the state's impaired waters list, the League had long urged a public forum to discuss the adequacy of the methodology. Previously, decisions regarding the methodology were made by N.C. Division of Water Quality (DWQ) staff members without guidance or input from the N.C. Environmental Management Commission (EMC) and with only limited comment from the public.

In response, the EMC decided last month to oversee development of the list, capping an eighteen-month campaign by the League and other stakeholder groups seeking a new process. EMC oversight of development of this list had been a top regulatory priority for the League. (Read more about the League's efforts to secure EMC involvement in "EMC Agrees to Oversee Impaired Waters List" in the November 2012 edition of EcoLINC.)

The state's impaired waters list, also known as the 303(d) list, is named after Section 303(d) of the federal Clean Water Act and 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.

NCLM Comments Stressed Lack of Detail, Flexibility

Overall, the League's comments made suggestions to improve the lack of detail and flexibility for decision-makers who determine whether to list waters as impaired. The current methodology did not offer enough description of the process and basis for these important regulatory decisions. Without a complete understanding of the determinations, the public and affected entities such as cities and towns faced difficulties in responding to listing decisions.

Specifically, the League comments offered four over-arching suggestions:

  • Expanding the methodology to include a more complete description of DWQ staff deliberations on listing decisions and to establish reasonable "best professional judgment" guidelines.
  • Requiring a written explanation to accompany each listing decision, including all pertinent information that informed the listing decision.
  • Allowing increased flexibility for decisions, particularly when a decision has a large regulatory impact such as affecting an entire watershed.
  • Including a process to "de-list" waters for good cause, including if mistakes have been made in previous listings or if a study reevaluated the waters and pointed to non-impairment.

The League also offered specific comments on a dozen different aspects of the methodology. Highlights of these specific comments include:

  • Urging more thorough study of data prior to making a listing decision based on chlorophyll a, a parameter indicating nutrient impairment of waters.
  • Reforming the basis upon which fish consumption advisories may be used in impairment decisions, a response to shortcomings in the methodology that surfaced with the mercury TMDL issue earlier this year.
  • Detailing the steps an interested party must take to submit its own water quality sampling data.

In support of its points, the League included information regarding the processes followed by other southeastern states.

Next Up: EMC Approval of List

Under the process recently approved by the EMC, for the next 303(d) list, DWQ will present the use assessment methodology to the EMC at its January meeting. The methodology should reflect any changes made in response to public comment on the document. 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 over the following year. 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.

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Regulatory Briefs

EPA has released an updated version of its Guidelines for Water Reuse, the first update in eight years for this water reuse manual, which includes a detailed analysis of the reuse laws in ten states with detailed regulations...Citing ongoing legal and financial challenges, economic developers withdrew the proposed Sanderson Farms facility in Nash County, which would have been one of the state's largest poultry operations; opponents had cited concerns over public drinking water supply contamination from the operations...The N.C. Bar Association will offer its first continuing legal education course in over 20 years that is dedicated solely to examination of N.C. water law on January 17 in Cary...National advocacy groups representing wastewater, stormwater, and public works professionals have joined homebuilders and realtor groups in a lawsuit opposing a Virginia stormwater flow TMDL, an approach EPA is still considering to revise or drop...In the face of congressional scrutiny of the 319 nonpoint source management grants program, EPA has issued new grants guidelines stating that half of the program's funds should address watershed-based approaches rather than site-specific approaches...The Iowa League of Cities has filed suit in federal appeals court challenging EPA's practice of using memos as guidance to change its policy on the use of mixing zones near wastewater discharges during storm events...DWQ has finalized the Proprietary Systems chapter of the state BMP manual...EPA published a new website to catalogue presentations and research it is using in a project to capture the monetary value of water...The U.S. Supreme Court heard arguments last week in the Los Angeles stormwater permit case; the justices' questions focused on the extent to which downstream dischargers may be responsible for upstream stormwater discharges...In the ongoing Florida numeric nutrient criteria action, EPA has approved Florida's proposed criteria for inland waters like lakes, springs, rivers and streams; imposed its own numeric criteria for coastal waters and estuaries; signaled that it would amend a controversial component that would impose further regulation on upstream dischargers based on "downstream protection values"; and likely opened itself up to yet another round of lawsuits.
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NCLM and State Government Environmental Meetings & Events