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NCLM News & Political Report
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For lovers of politics, the elections this fall promise to deliver the equivalent of watching UNC and Duke slug it out for the NCAA basketball championship trophy. The potential for sea change will undoubtedly affect the extent of environmental regulation and legislation in this state.
Both parties expect North Carolina to be ground zero for the presidential race. The new redistricting maps mean the state's congressional delegation may see its largest partisan swing in decades. The large number of contested statewide races for Governor and cabinet positions may significantly shake up the partisan make-up of the executive branch. And at the legislative level, it is hard to remember a time in modern history where the legislature would have more newly-elected officials.
Of course, elected officials from the League's membership have thrown their hats in the ring, too. In particular, three NCLM Board of Directors members have filed for higher office: President Latimer Alexander, High Point, Senate District 27; Board Member Terry Bellamy, Asheville Mayor, U.S. House District 10; Board Member Rudy Wright, Hickory Mayor, N.C. State Auditor.
While candidates get down to the business of campaiging, the schedule of interim legislative committee meetings continues at a breakneck speed in preparation for the short session beginning May 16 (see calendar below). The League's four policy committees and Government Affairs team has worked furiously in the past nine months to position the League for success this short session.
To ensure the Municipal Advocacy Goals remain as current as possible, policy committee members have held multiple meetings to refine language for short session policy goals. Members of these committees have also met with local legislative delegations prior to their meetings at early-morning events called "Breakfast of Champions."
And the GA team has hit the road, attending dozens of local government roundtables organized by the Speaker of the House. Team members have also briefed dozens of town councils, mayors' and managers' groups, and regional groups of elected officials. And in April, the team will fan out across North Carolina to deliver a series of twelve legislative and regulatory updates to local officials in towns from Franklin to Wilmington.
Stay up to date on hot topics like these by reading the League's advocacy blog.
303(d) List Comments Target Transparency, Statewide Mercury Listing
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NOTE: A shorter version of this article appeared in the League's advocacy blog on March 12.
Comments submitted Monday by the League on the state’s Draft 2012 303(d) list focused on increased transparency in the listing process and offered reasons to drop the statewide mercury listing. The comments also encouraged the N.C. Environmental Management Commission (EMC) to take a more active oversight role in development of the 303(d) list.
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.
Transparency in Listing Process
Due to the potential for increased regulation and treatment and program costs, the League comments focused on suggestions to develop the list in a more open manner. Currently, the N.C. Division of Water Quality (DWQ) undertakes the entire 303(d) listing process internally before sending the package to EPA for approval. However, state law grants the EMC authority to develop the state’s 303(d) list and resulting TMDLs. While the EMC does not currently exercise this authority, the League has over time pressed the Commission to assume, at a minimum, an oversight role in the 303(d) listing process.
In these comments, the League’s suggestions for more openness included asking the EMC to: oversee the assessment methodology used by DWQ staff in making listing decisions; set the policies for prioritization of water segments for TMDL development; and approve guidelines for water segment data collection and submission. The League believes that EMC oversight in these key areas will assure better understanding of listing decisions and result in a more open process.
Other ideas for increased transparency in the listing process included asking DWQ to: make the assessment methodology available well ahead of the public comment period; include the lists of all categories of water segments rather than just categories 4 and 5; publish instructions for access to DWQ data sets and processes for data analysis; develop methods for regulated entities to obtain assistance; and institute formal public notice procedures for comment on the draft 303(d) list.
Statewide Mercury Listing
The League’s comments focused on one other key area with the draft 303(d) list, the statewide mercury listing. DWQ categorized all of the state’s waters as impaired for mercury based on a statewide fish consumption advisory issued by the N.C. Department of Health and Human Services (DHHS).
This listing is unusual in four respects.
First, it is based on a fish consumption advisory issued to protect human health. Typically, DWQ lists waters as impaired based on standards developed to address aquatic health, though federal guidelines do make provisions for a listing based on a fish consumption advisory.
Second, DWQ listed these waters using data collected and analyzed by an agency besides DWQ. While DWQ maintains data collection and analysis standards based on federal guidelines, with this mercury listing, it was not clear if DHHS followed the same standards to result in its health advisory.
Third, the listing applied statewide. No other impairment in North Carolina has ever been applied statewide. As the League comments pointed out, in the case of listing based on a fish consumption advisory, federal guidance discourages blanket statewide listings. Instead, federal guidance instructs states to list only those water segments for which there is site-specific data to support the fish consumption advisory. Public documents that explain the mercury consumption advisory indicate that the advisory was based on representative samples, not an analysis of data from every water segment in the state.
And finally, DWQ models (Information Item #III.2) showed that nearly the entire source of mercury in N.C. waters (98%) comes from the air, mostly from power plant emissions. Usually, an impairment is the result of pollutants added to the water from sources discharging directly to the water. In the case of this mercury impairment, DWQ models estimated that 2% of the mercury comes from wastewater discharges.
Due to the potentials for error in this listing, the League requested that DWQ remove the statewide mercury listing from the draft 303(d) list. Such a move would not preclude listing of individual water segments when site-specific data supported such a listing.
In the alternative, the League asked DWQ to place this listing in a category allowed under federal guidelines just for mercury impairments when the primary source of mercury is atmospheric deposition. This maneuver would allow DWQ to forestall implementation of a TMDL so long as another mercury reduction program is in place. In North Carolina, the 2002 Clean Smokestacks Act has proven to be a tremendous success at reducing in-state mercury emissions.
Comments on the draft 2012 303(d) list were due to DWQ on March 12, 2012. After reviewing the comments, DWQ will forward the list to the U.S. Environmental Protection Agency (EPA) by April 1, 2012. EPA must approve the list.
League Suggests Ways for Increased Urban Stream Protections
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The comments responded to a proposal allowing more options for buffer mitigation
, a state program that generally requires protection of nearby waters when activities impact a stream on or adjacent to a development site. However, for urban areas, the current program requirements are often too strict to allow buffer mitigation in urbanized areas. For example, one program element requires a tract with a minimum of 50-foot buffers on either side of a stream. In urban areas, finding such wide swaths of uninterrupted land poses great challenges.
In 1999, the state legislature recognized this and other challenges and directed
the EMC to write rules that would allow for expanded buffer mitigation options. The EMC has debated a proposal since 2009, and may hear the latest version at its May 2012 meeting.
In urging EMC commissioners to incorporate rule language that would ease restrictions on buffer mitigation in urban areas, League members hope to undertake more projects in the urban areas that often need the most water body protection. Many N.C. streams in developed areas have been listed as impaired waters on the state's 303(d) list
Please read the comments
to learn more about the specific buffer mitigation program elements at issue. If you have suggestions to add, please send them to Erin Wynia
DWQ Nutrient Management Forum Details Shape Up
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The N.C. Division of Water Quality (DWQ) has come close to finalizing details for its upcoming "N.C. Forum on Nutrient Over-Enrichment." 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 N.C. Environmental Management Commission (EMC) for consideration.
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:
- John Cox, Durham Stormwater Services Water Quality Manager
- Jeff Hughes, UNC Environmental Finance Center Director
- Jackie Jarrell, Charlotte-Mecklenburg Utilities Environmental Management Division Supervisor
- Scott McClelland, CDM Smith Vice President
- Darryl Moss, Creedmoor Mayor and EMC Commissioner
- Richard Whisnant, UNC Environmental Finance Center Professor of Public Law and Government
The forum will focus on the state of nutrient science, law, and policy, culminating in a report of the topics discussed. The two-day seminar will allow ample time for questions and discussion, including questions submitted in advance.
The topic of nutrient impairment is a top priority of the U.S. Environmental Protection Agency 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.
Groundwater Standards Vote Elicits Heated Debate at EMC
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Members of the N.C. Environmental Management Commission (EMC) plunged into a heated debate over groundwater quality standards Thursday, resurrecting an on-again, off-again argument over the stringent criteria used to set groundwater standards. The long debate eclipsed the non-controversial vote before commissioners.
The issue came before the EMC as a result of a petition for rulemaking asking for a less stringent groundwater standard for the chemical 1,1 dichloroethylene. The petition resulted from a lack of flexibility in groundwater standard-setting regulations. In July 2011, commissioners approved the request to go to public hearing. Then amidst the broader discussion Thursday, they approved the accompanying, non-controversial fiscal note for public hearing.
Commissioners quickly turned their attention to a long-running question over whether the criteria for setting groundwater standards in North Carolina is too stringent. Current state regulations require the standard to be set at the lowest of six criteria listed in 15A NCAC 02L .0202(d), one of which is a drinking water-related standard. Over the years, the League and other groups have commented that this restriction on standard-setting often means that standards are set at many orders of magnitude below the level deemed safe for drinking water, even though the stated purpose of the groundwater quality program is protection of drinking water supplies. This approach in standard setting results in over-regulation.
At the July 2011 meeting and again on Thursday, commissioners clashed over whether the public notice should include language inviting public comment on the stringent criteria issue. Prompted by a proposed amendment submitted by Commissioner Jeff Morse, Valdese Town Manager, the EMC struggled over the proper venue for addressing the issue: this particular public comment period, or through the typical EMC committee process.
Commissioner Kevin Martin expressed frustration that the issue had persisted since 2004 with no resolution, noting that its history was fraught with legally insufficient solutions. Chairman Steve Smith empathized with this frustration, and while directing input on the issue during the approved public comment period, he stated his preference for using the typical EMC committee process to vet the issue.
"This is not the proper process for this much of a rule change," Smith said. "The reason we're having so much difficulty is because there is a proper way to do things, and this isn't it."
Throughout the discussion, commissioners indicated a willingness to consider changes to the standard-setting criteria. The League maintains its long-held opinion that the criteria should be changed to allow for more flexibility in setting standards, and supports any efforts by the EMC to allow this flexibility.
EMC Votes on Controversial CAFO Discharge Case
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The NPDES Committee of the N.C. Environmental Management Commission (EMC) grappled with a case of first impression for North Carolina in January when it heard the appeal in Rose Acre Farms and N.C. Poultry Federation v. N.C. Dept. of Environment and Natural Resources. The case concerned a disputed National Pollutant Discharge Elimination Sysytem (NPDES) permit renewal issued by the N.C. Division of Water Quality (DWQ) to Rose Acre Farms in September 2010.
Rose Acre Farms, located in Hyde County, is the largest poultry facility in North Carolina with over 3.2 million hens. While the original 2004 NPDES permit issued to Rose Acre Farms prohibited all discharges, with the renewed permit, DWQ sought to permit ammonia discharges from a detention pond located one-fifth of a mile away from the hen house facility, with further regulation in the form of required Best Management Practices (BMPs).
This permitting action by DWQ represented the first time it issued a permit to a concentrated animal feeding operation (CAFO) where the pollutant originally came from the CAFO’s air emissions. DWQ, like the U.S. Environmental Protection Agency (EPA) and other states, has long sought to understand the extent to which CAFO emissions impair waters – and if so, how to regulate CAFO sources of atmospheric deposition under the federal Clean Water Act. EPA attempted to clarify this issue with a 2008 rule that required CAFOs to seek an NPDES permit if they intended to discharge.
Rose Acre Farms came before the EMC against the backdrop of a challenge to EPA’s 2008 rule, National Pork Producers Council v. EPA (635 F.3d 738, 5th Cir. 2011), and it represented one of the first tests of what constituted a discharge from a CAFO since National Pork Producers. In that case, the U.S. Fifth Circuit Court of Appeals rejected EPA’s 2008 rule, instead ruling that EPA could only require CAFOs to seek permits if they actually discharge.
Rose Acre Farms presented the EMC with a twist on the National Pork Producers facts because the disputed discharge came from air emissions rather than traditional effluent contents. In the N.C. case, Administrative Law Judge Augustus Elkins ruled in favor of Rose Acre Farm’s motion for summary judgment, stating that because the operation did not discharge as a matter of law, it did not have a responsibility to seek a permit. By extension, Elkins stated, DWQ lacked the authority to issue the permit or to require BMPs.
In its appeal to the EMC, DWQ disputed those conclusions. Instead, DWQ argued that it based its permitting decision on a determination that the pond discharged ammonia into a nearby stream, a discharge it is allowed to regulate in the NPDES program. The ammonia originated from dust, feathers, and bedding materials, that were pushed into the air from an extractor fan on the hen house facility and that settled into the detention pond. In issuing this permit, DWQ contended that it had the authority to regulate atmospheric deposition of the particles emitted by the extractor fan as a discharge into the nearby stream. Therefore, DWQ decided, the CWA allowed it to require Rose Acre Farms to install BMPs to reduce the amount of ammonia discharged.
The EMC’s NPDES Committee, as a final agency decision-maker, heard heated arguments and took two votes to reach its decision. The first motion, which would reverse Elkins’ opinion and instead grant summary judgment to DWQ, failed in a split vote. In that motion, NPDES Committee Chairman David Moreau cast the tie-breaking vote. Therefore, the Committee sidestepped a ruling that, if made in favor of DWQ, would have set a precedent of regulating air emissions from CAFOs under the NPDES program. Such a ruling would have held broad implications for thousands of N.C. CAFOs as well as other facilities whose emissions may impair waters, such as power plants.
Instead, the EMC voted in favor of a second motion to remand the case to Elkins for an evidentiary hearing on whether a discharge existed, and if so, whether the BMP requirements were an appropriate exercise of agency discretion. This vote represented a victory for DWQ, which had requested the evidentiary hearing at a minimum.
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Tom Reeder, Director of the Division of Water Resources, expects the Ecological Flows Science Advisory Board to continue its work until late 2013/early 2014, with the Division taking another year beyond that date to integrate the Board's recommendations into hydrologic river basin models...The consolidated buffer rules have been placed on hold indefinitely, according to DWQ...DWQ has again revised its mercury TMDL timeline, pegging the release of the TMDL and implementation documents in early April, with stakeholder meetings and the public comment period beginning in late April...The N.C. Division of Air Quality has amended its recommendation for ozone non-attainment boundaries to include all of Mecklenburg County and portions of Cabarrus, Gaston, Iredell, Lincoln, Rowan, and Union counties, a more narrow region than first proposed...The EMC Water Quality Committee will likely begin discussions over the role of the EMC in development of the 303(d) list and TMDLs soon...EPA has likely pulled back on plans to propose a rulemaking on Clean Water Act jurisdiction in this election year, instead refining its guidance document that would affect the extent to which wetlands and other marginal waters are considered "waters of the United States" and thus subject to regulation...The N.C. Supreme Court has still not ruled on whether to hear an appeal of the decision that upended the state’s riparian water law, though it could decide at its next evaluation of potential cases, in April…Learn about where North Carolina needs stronger regulations and receive the DENR shale gas study when it is released in mid-March by signing up for the listserv at DENR_shale_gas@ncdenr.gov.
NCLM and State Government Environmental Meetings & Events
- Metropolitan Sewerage/Water System Committee, March 14, 1:30 pm, Legislative Office Building Room 643, Raleigh
- NCLM Planning & Environment Legislative Action Committee, March 15, 10:00 am, Alamance Country Club, Burlington
- Joint Regulatory Reform Committee, March 20, 1:00 pm, Legislative Office Building Room 544, Raleigh
- House Appropriations Subcommittee on Natural and Economic Resources, 2:00 pm, Legislative Office Building Room 424, Raleigh
- DENR Shale Gas Study Public Meeting, March 20, 6:30 pm, Wicker Center, Sanford
- Legislative Research Commission’s Energy Policy Issues Committee, March 21, 1:00 pm, Legislative Office Building Room 643, Raleigh
- Environmental Review Commission, March 22, 9:30 am, Legislative Office Building Room 544, Raleigh
- NCLM General Government Legislative Action Committee, March 26, 10:00 am, Grand Marquis Ballroom, Garner
- DENR Shale Gas Study Public Meeting, March 27, 6:30 pm, East Chapel Hill High School Auditorium, Chapel Hill
- NCLM Tax & Finance Legislative Action Committee, March 29, 10:00 am, Town of Benson Conference Center, Benson
- NCLM Regulatory Advisory Committee, April 10, 10:00 am, Lee S. Duke Water Treatment Plant, Huntersville