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NCLM News & Political Report

When North Carolina's 170 state legislators reconvene for their Short Session tomorrow, 78 of them -- nearly half -- know they will return to the N.C. General Assembly following elections this fall. Revealing the power of legislative maps drawn to strongly favor one political party or the other, 55 legislators faced no primary or general opposition this year. Another 23 districts featured only primary opposition, so the winners of those races effectively won their elections after last Tuesday's primary elections.

2014 Short Session Priorities

Last week, legislative leaders promised weighty topics for these 170 senators and representatives to consider. Senate President Pro Temp Phil Berger told reporters Thursday to expect coal ash legislation, one of his chamber's top five priorities. Addressing shortcomings revealed by the Feb. 2 coal ash pond spill on the Dan River, the legislation would focus on protection of drinking water supplies, Berger told WRAL. "We need to have a solution that ensures coal ash is not going to be a potential problem for our drinking water supplies. That means our rivers, our groundwater, all of those things," he said. Because the spill occurred in Sen. Berger's district, most observers expect coal ash legislation to originate in that chamber. Tellingly, Rep. Chuck McGrady told constituents last week to expect one of his bills that had already cleared the House (and was unrelated to coal ash) to be used as the vehicle for any Senate legislation. Using a bill that had already cleared one chamber would ease the procedures needed to pass such a measure.

Berger also highlighted oil and gas extraction as another priority focus area for legislators this upcoming session. And over the weekend, House Majority Leader Edgar Starnes reiterated that further reforms to the state's oil and gas extraction laws were at the forefront of his chamber's agenda this session, too. Read about the energy bill proposal in "Legislation Prescribes Hydraulic Fracturing Regulations," below.

Finally, Berger cited regulatory reform as an additional top priority for legislators. While he declined to give reporters specific details about any regulatory reform proposals, past proposals have taken the form of omnibus bills chock full of different changes to the law, many of them environmental. Last session, Governor Pat McCrory mulled a veto of that session's regulatory reform act over concerns regarding stormwater and other environmental measures in the bill. He ultimately signed the bill on the last day in which he could make a decision.

Right off the bat this session, League members, both elected and appointed officials, will have an opportunity to press legislators on the League's top priorities for the session. Tomorrow, the League Board of Directors will walk the halls on the first day the legislators reconvene for business. Next Tuesday and Wednesday, members from each of the League's three Legislative Action Committees will visit legislators in a series of appointments with key leaders in each chamber. And on June 4, hundreds of officials from across North Carolina will attend a full day of legislative visits and programming during the League's Town Hall Day, the largest gathering of elected officials each year in Raleigh. Such visits turned the dial on a number of high-profile issues last session, ensuring favorable outcomes for all cities and towns.

Regulatory Personnel Changes

The N.C. Environmental Management Commission (EMC) saw personnel changes in recent weeks. First, Governor McCrory filled the remaining open slot on the Commission, one reserved for a licensed physician. Dr. Lawrence Raymond was sworn in at the beginning of last week's Commission meeting. Commissioner Raymond is the Director for Occupational/Environmental Medicine in the Department of Family Medicine at Carolinas Health Care System in Charlotte. The League membership looks forward to a productive working relationship with Commissioner Raymond.

Next, Governor McCrory appointed (now former) EMC Commissioner Steve Keen as his Eastern Region Director. As a result, Keen resigned his seat on the EMC. Because Keen was originally appointed by the Senate President Pro Tem, the seat will remain empty until the legislature passes its appointments bill, likely this summer.

Finally, the state's Water Quality Permitting Chief, Matt Matthews, announced his retirement, effective June 27. Matthews leaves large shoes to fill, having served in a position that managed the state's wastewater treatment permitting, pretreatment, collection systems, 401 certifications, and wetlands programs. The League members worked closely with Matthews and will miss his expertise.

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EMC Moves Water Quality Standards Package Forward

Acting in support of one of the League's top regulatory goals, the N.C. Environmental Management Commission (EMC) advanced a proposal (action item 14-11) Thursday to update the state's water quality standards, a rulemaking package known as the "triennial review." Now, the standards will proceed to a 60-day comment period. As with all previous opportunities for comment on the triennial review, the League will provide input on this rules package (read about previous efforts in "League Leads City Input on Surface Water Quality Standards," January 2014).

The League membership selected the triennial review as one of its top regulatory goals because of the impacts the standards have on wastewater treatment costs as well as on the growth of business and industry in communities. 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 proposed changes to certain metals standards such as cadmium, chromium, nickel, silver, and zinc, as well as other measured parameters such as chlorophyll-a. 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.

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Proposal Eliminates Local Regulatory Authority over Trees, Fertilizer Application

Draft legislation released Wednesday would prevent municipalities and counties from regulating "the removal, replacement, and preservation of trees on private property within its jurisdiction." Immediately following the release of this proposal, the League issued an action alert, which resulted in extensive media coverage and activation of concerned neighborhood groups and other stakeholders. A Charlotte Observer article this weekend described the effort as "organized, sustained opposition," noting that "cities and counties are lobbying heavily to kill" the proposal.

Tree Proposal

The proposal, endorsed by the Agriculture and Forestry Awareness Study Commission, would eliminate statewide cities' authority to enact tree ordinances, including those involving the protection of trees during construction, the protection of historic and "heritage" trees from removal, and replacement of trees in disturbed, regulated buffer areas.

The League was not made aware of the proposal and did not see the proposed language before it was presented to the committee. Without discussion, the committee voted to recommend the proposal to the 2014 General Assembly. The topic of "over-reaching" local tree ordinances came up in previous legislative committee meetings this year, including testimony by the N.C. Home Builders Association at the February Environmental Review Commission meeting.

Cities and towns utilize tree ordinances to maintain community character and appearance, which keeps property values high and encourages businesses and residents to locate in those cities. In addition, federally-mandated local stormwater programs often utilize tree plantings to meet requirements to reduce runoff. If cities lose the ability to provide assurances -- via ordinances -- that the trees would remain on-site after development, they would have to turn to a more onerous system of conservation easements on private lands to stay compliant with their permits. In addition to making compliance with stormwater quality mandates more difficult, a loss of local authority to regulate trees would also inhibit the ability of cities to control flooding on private property and roadways. Trees provide one of the best mechanisms for excess water uptake.

To advance in the process, this proposal would have to be introduced as a bill in the Short Session, then pass both the House and Senate and receive consideration by the Governor before becoming law. Read media reports on this proposal in "State could ban city and county tree laws" (Durham Herald-Sun), "Legislature may chop down local tree-protection rules" (Greensboro News & Record), and "N.C. legislators' proposal would block tree ordinances" (Charlotte Observer).

Fertilizer Proposal

The bill recommended by this study committee also contained another limitation on local government authority that was previously recommended by the legislative Environmental Review Commission in its report last month. This item would bar cities and counties from adopting ordinances regulating "the use, sale, distribution, storage, transportation, disposal, formulation, labeling, registration, manufacture, or application of fertilizer." The language was identical to a portion of current N.C. statute dealing with pesticide use, although unlike that provision, it contained exceptions for fire prevention/inspection and for state regulators who enforce water quality standards.

Cities are required to regulate fertilizer application and storage under federal wastewater and stormwater permits. For wastewater programs, to protect wastewater treatment processes, those federal permits require cities to control the types of substances discharged by industrial users into sewer systems. Those substances can include fertilizers and pesticides. And under federal stormwater permits, cities must ensure that no illicit discharges occur into streams in their jurisdictions, including excessive amounts of fertilizers and pesticides. In addition, those permits require municipalities to police themselves to prevent over-application of fertilizers and pesticides.

The League is working with stakeholders and legislators to modify this proposal to ensure that permitted cities may continue to implement their permits without violating state law.

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U.S. Supreme Court Declines to Hear Stormwater Liability Case

The U.S. Supreme Court denied Los Angeles County’s petition to review the Ninth Circuit Court of Appeals’ decision in Los Angeles County Flood Control District, et al. v. Natural Resources Defense Council. This decision means the Ninth Circuit’s August 2013 ruling stands. That previous decision held Los Angeles County strictly liable for stormwater pollution at its monitoring stations that exceeded levels allowed in its National Pollutant Discharge Elimination System (NPDES) permit.

However, prior to that Circuit Court ruling against the County, the issue had a long case history, including an original decision by the U.S. Supreme Court in January 2013. In that first decision, the U.S. Supreme Court ruled in favor of the county, finding that downstream NPDES permit-holders were not liable for upstream stormwater discharges to a water body that are then transferred downstream.

In light of that original ruling, the U.S. Supreme Court returned the case to the Ninth Circuit for further consideration. After reconsidering, the Ninth Circuit issued a new opinion again holding Los Angeles County strictly liable for stormwater discharges. It based this conclusion on in-stream monitoring data, finding that an NPDES permit-holder may be held liable for exceedances of water quality standards when its own monitoring revealed such exceedances within waters controlled by the permit-holder. With the U.S. Supreme Court's denial of the utility's second petition, the Ninth Circuit's ruling stands, and remedies in the case could require stormwater retention techniques including green infrastructure.

Significant differences exist between the facts of this case and how North Carolina programs are permitted. Therefore, portions of the decision may not apply to permitted North Carolina stormwater programs.

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House Committee Examines Water System Financial Practices

Continuing its examination of local government enterprise systems' financial practices -- with a particular emphasis on water and wastewater systems -- the Public Enterprise Systems Use of Funds Committee heard more last week about how these systems accounted for funds received from system ratepayers.

Of particular concern, presenter CH2M Hill Vice President JD Solomon told the committee that many local governments no longer had the talent and ability to properly manage water and wastewater systems. Suggesting that privatization of these services provided a better outcome than public management, Solomon said many financial stresses justified his recommended "best practice," including out-of-control pension costs. North Carolina's local government retirement system is among the best-funded systems in the country.

Other presentations included UNC School of Government faculty members Gregory Allison and Kara Millonzi, who explained the state and federal accounting rules and legal standards which all public enterprise systems must follow when providing these services. They stressed that the Local Government Commission retained comprehensive oversight of system finances, helping to ensure systems followed state and federal laws and standards. They also pointed out that as a practical matter, a system's desire to access private bond markets for needed capital funds incentivized systems to keep their financial statements accurate.

Committee member questions that followed these presentations continued themes from previous meetings, asking about local financial and management practices that they viewed as suspect. Rep. George Cleveland, for example, asked if N.C. law placed any limits on funds an enterprise system could transfer from an enterprise fund to a local government's general fund. Rep. Cleveland also asked if a water enterprise could set tap fees at any level it wished. In another line of questioning, Rep. Jimmy Dixon asked if any limits existed on the fund balances that enterprise systems could accumulate.

As he stated in previous meetings of this committee, co-chair Rep. Tim Moffitt said the committee would pick up its work with another meeting after the Short Session that begins tomorrow, with a goal of recommending legislation for the 2015 Long Session.

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Coal Ash Disposal Options Dominate Legislative Debate

As a result of the February spill that sent over 30,000 tons of coal ash into the Dan River, the political debate regarding environmental issues was dominated this past month by discussions of coal ash and how to prevent another spill. In addition, regulators and legislators saw renewed scrutiny of their past actions and faced significant pressure to respond with tighter laws and regulatory decisions, creating competing options regarding solutions for the coal ash dilemma.

Any legislative proposal that moved forward in the Short Session beginning tomorrow would certainly affect municipalities; potential clean-up sites addressed by changes to existing state laws could be coal ash pits and other industrial sites, or they could be lands onto which residuals from municipal wastewater treatment operations are applied. In addition, cities and towns remain concerned about potential coal ash contamination of municipal water supplies.

Making the first move toward reforms last month, Governor Pat McCrory's administration released a comprehensive coal ash plan that would require pond closure plans within 60-90 days for Duke Energy's coal ash basins at the company's Riverbend, Dan River, Sutton, and Cliffside sites. The proposal would evaluate remaining ash ponds at the other ten sites individually. (Read more about Governor McCrory's plan from WRAL and Charlotte Observer).

Immediately on the heels of the Governor's proposal, the Environmental Review Commission (ERC), an interim legislative oversight committee, met in late April in a rare extra meeting specifically to discuss coal ash. At the meeting, committee members gained insight into current clean-up efforts regarding the Dan River spill and options for closing all open-air pits in the state. Paul Newton, Duke’s North Carolina state president, stated that the status of the 33 pits at fourteen coal-fired power plants sites was under review, but a top guiding factor for the company when deciding whether to retire and close a site was the site's proximity to drinking water. Other factors, he said, included community considerations (truck traffic), completion time, environmental considerations, and cost effectiveness.

Like the Governor's proposal, Newton said Duke placed four sites (Dan River, Sutton, Riverbend, and Cliffside) on a priority list for closure, and he said it was likely the ash from these priority sites would be removed to dry, lined landfills or be utilized for reuse. Newton also explained that moving all of the company's over 100 million tons of coal ash would take decades and could cost $10 billion.

Reflecting a divide on this topic between the Governor and the legislature, committee members did not discuss Governor McCrory's plan at this meeting. In addition, some legislators expressed frustration over not having advance notice of the proposal from the Governor. The ERC had already proposed legislation in March to shorten the time for reporting unauthorized wastewater spills from 48 hours to 24 hours.

Anticipated Short Session Legislative Action

In a press conference Thursday, Senate President Pro Tem Phil Berger expressed specific concerns over effects of coal ash on drinking water, stating, "We need to have a solution that ensures coal ash is not going to be a potential problem for our drinking water supplies. That means our rivers, our groundwaters, all of those things." To lead this effort, Berger tasked Senator Tom Apodaca with recommending coal ash legislation from the Senate. In his own media interviews, Apodaca said the Senate proposal would set deadlines to move and safely store coal ash from the most critical ponds.

To add more uncertainty to the coal ash dilemma, opportunities for beneficial reuse of coal ash may be limited. Part of Duke Energy's plan for disposal included the reuse of coal ash as structural fill in various applications, including moving ash from the Riverbend site near Mountain Island Lake to Charlotte Douglas International Airport for use under a planned runway. However, the airport stated last week that it did not want the coal ash for use under the airfield because of uncertainty about how coal ash would work as a fill material (read more from the Charlotte Observer). In addition, another level of uncertainty remained around whether EPA will decide to regulate coal ash as either a solid or hazardous waste under the Resource Conservation & Recovery Act (RCRA), a move expected later this year.

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Recommendation Shifts Liability for Incomplete Infrastructure to Local Governments

A proposal advanced last month by the House Committee on Land Development would shift the liability for incomplete sedimentation and erosion control infrastructure in new developments to local governments, under certain circumstances. Both the League and the N.C. Home Builders Association (Association) spoke in opposition to the recommendation at the meeting.

The League's concerns echoed those of committee member Rep. Mike Hager, who stated that he worried the proposal would unnecessarily shift the cost of development-related infrastructure to local governments and taxpayers. In the proposal, that liability did not have well-defined limitations. In addition, during previous committee discussions of this topic, Reps. Pat McElraft and Chuck McGrady questioned the need for any legislation at all.

The proposal (page 21) would hold a city or county responsible for completing any sedimentation and erosion control infrastructure that threatened a residential dwelling at risk of property damage, if that city or county issued a certificate of occupancy before the sedimentation and erosion control infrastructure was completed. However, before imposing that liability, the proposal also would give local governments the ability to deny a certificate of occupancy on the basis of incomplete sedimentation and erosion control infrastructure, if the developer also had not provided a performance guarantee for the work. Performance guarantees include instruments such as a bond or letter of credit. Because, for practical purposes, the proposal would incentivize most local governments to require these performance guarantees of developers and homebuilders, the Association opposed the proposal. In public comments at the meeting, the Association stated that such performance guarantees for sedimentation/erosion infrastructure would drive up the cost of development.

Before voting to approve the recommendation as originally proposed, committee members appeared open to amendments that would address the League's and Association's concerns. Such amendments could potentially be offered before the final approval of the recommendation by the Legislative Research Commission (LRC), which meets this afternoon to approve recommendations that came from numerous LRC study committees meeting during this interim period. Upon gaining LRC approval, the recommendations would be eligible for introduction in the legislative Short Session.

This committee previously discussed ways to ensure better coordination between development inspections related to building safety and those related to environmental infrastructure such as retaining walls. While the committee had a broad charge, the idea for the study topic grew out of troubles with a development in Lowell. Read a short description of that situation in this February 2014 EcoLINC article.

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Legislation Prescribes Hydraulic Fracturing Regulations

An omnibus energy proposal focused on hydraulic fracturing and recommended last week contained numerous provisions affecting cities and towns. With legislative sights set on clearing the way for shale gas exploration, it was no surprise the Joint Legislative Commission on Energy Policy -- an interim commission of legislators that oversees the work of energy policy boards in the state -- proposed the Energy Modernization Act Thursday. The measure would affect many aspects of regulations related to the management and development of oil and gas exploration in the state.

Senate President Pro Tempore Phil Berger spoke last week about his chamber's legislative agenda for the 2014 Short Session and included hydraulic fracturing as one of the Senate's top five legislative priorities. Significant items in the proposal for cities and towns included:

  • A section reiterating that the disposal of waste from oil and gas exploration by injection into subsurface or ground waters by means of wells, a practice that would pose large concerns for many municipalities drawing from aquifers for their water supplies, was prohibited in the state. 
  • A provision that would invalidate local ordinances that prohibited or had the effect of prohibiting hydraulic fracturing activities. This section mirrored current statutory provisions that preempted local governments' regulation of hazardous waste facilities. Both the hazardous waste law and this new oil and gas extraction proposal provided that a local zoning and land-use ordinance was presumed valid to the extent it was generally applicable to all development, unless there was a finding of fact by the regulatory entity to the contrary.
  • A section addressing the controversial trade-secret aspect of drilling regulations. In that section, the draft legislation went beyond N.C. Mining & Energy Commission (MEC) recommendations and required mining operators to give the state a complete list of the chemicals used in their operation. This list would be held by the state Division of Emergency Management and would be immediately accessible to emergency responders and physicians in the event of a spill.
  • A provision that would change the area of “presumptive liability” around horizontal drilling well heads -- the area the mining operator is required to test water before and after drilling -- from 5,000 feet to 1/2 a mile (2,600 feet) in radius. There was some debate as to whether this provision extended or shortened the area of testing; energy committee co-chair Rep. Mike Hager claimed it was an extension because the 5,000 feet was in reference to a diameter, but the current law did not specify "diameter" when describing the area for testing.

In addition to these provisions, other aspects of the proposed legislation included:

  • Extension of the deadline of rule development by the MEC and N.C. Environmental Management Commission (EMC) from October 1, 2014 to January 1, 2015
  • Exemptions for oil and gas-related rules from certain provisions in the Administrative Procedures Act
  • Creation of a new Oil and Gas Commission and reconstitution of the Mining Commission to replace the MEC (effective August 1, 2015)
  • Inclusion of a "bad actor" provision requiring environmental compliance review of drilling permit applicants by state regulators
  • Establishment of a severance tax
  • Studies of various topics, including transportation infrastructure

Read more from WRAL about this proposed legislation.

Cap on Local Property Tax Revenues Proposed

A surprising provision of the proposed legislation would cap the amount by which city property tax revenues could increase from year to year. Under the proposed legislation, city property tax revenues may not increase by more than 8 percent over property tax revenues collected in the previous fiscal year. Therefore, if a city's projected property tax revenues were expected to grow by more than 8 percent for the coming fiscal year, that city would be required to reduce its property tax rate to bring revenue growth under 8 percent. Similar language applying to counties was also included as part of the proposal.

Cities opposed this measure because it would be the first-ever statutory limitation on property tax revenues in North Carolina, and such a broadly written cap could significantly limit cities' ability to provide the services required by their businesses and their taxpayers. In effect, the measure inhibited a city's ability to promote economic development. This provision was not limited to areas in the state with shale formations where drilling is likely -- it would apply statewide.

During the three-minute committee discussion of the proposal, former Rockingham mayor Sen. Gene McLaurin voiced concern about restrictions on local governments, particularly in regards to property tax, and suggested studying what other states have done. This legislation is now eligible for introduction in the 2014 Short Session that convenes tomorrow. It would still need to be considered by both the House and Senate and go through the Governor's office before becoming law.

Mining and Energy Commission

For its part, the MEC continued to draft regulations regarding the management and development of oil and gas exploration last month, and it meets again for marathon sessions Thursday and Friday. As mentioned above, the proposed legislation would give the MEC an additional three months to finish its draft rule package, extending the October 1, 2014 deadline to January 1, 2015. (Read more about the MEC's previous actions in the February 2014 and October 2013 issues of EcoLINC.)

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Jordan Lake Committee Will Not Propose Short Session Legislation

After holding a series of four meetings since January and examining the fiscal impact on local governments of the Jordan Lake Rules, the General Assembly's Committee on Jordan Lake elected not to recommend legislation for the upcoming Short Session that begins tomorrow. Instead, at its April meeting, the Committee held a public hearing where members of the public voiced perspectives on the SolarBee project funded in last year's budget.

The project grew from years of legislative frustration that the Jordan Lake Rules imposed significant compliance costs on local governments with little evident improvement in the lake's water quality. SolarBee is a specific technology that aerates water, scrubbing it of nutrients in the process. The State's project sought to determine whether the technology could work on a large enough scale to prevent the growth of harmful algae in the lake, which are encouraged by the presence of nutrients. In addition to municipalities in the Jordan Lake watershed, dozens of other cities and towns across the state must pay for programs to remove nutrients from wastewater and stormwater discharges into state waters, a costly undertaking for many of them.

During the public hearing, environmental advocacy groups questioned the state's expenditure on SolarBees, pointing out that the technology was unproven for large water bodies such as Jordan Lake. Other commenters, including the City of Durham, stated that removing nutrients from the lake likely required a suite of treatment options, including technologies that provided in-lake removal of nutrients.

The April meeting was the fourth and final interim study meeting regarding the Jordan Lake Rules. The study was authorized in the omnibus "Legislative Research Commission" group of interim studies that came as a response to legislation last session that delayed portions of the Rules. Although a recommendation would have been eligible for introduction as legislation in the upcoming Short Session, co-chair Rep. John Faircloth announced that the committee would not propose legislation; instead, he announced that the co-chairs were open to any ideas from members about reforms to the Rules in future legislative sessions. The legislature has changed the Rules each legislative session since enacting them in 2009.

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Contracting Proposal Responds to Prequalification, Design Concept Concerns

A legislative study committee recommended a proposal last month that scaled back language suggested for previous drafts that would have severely limited the flexibility a local government had to use prequalification procedures when bidding projects. All municipal environmental infrastructure projects, including those related to water, wastewater, and stormwater infrastructure, must follow public contracting laws that include those under consideration by the study committee.

While the Purchase and Contract Study Committee made minor amendments to previous language in its proposal, the language ultimately approved by the committee would allow local governments to continue prequalifying bidders on public projects, pursuant to certain criteria. The committee drew from existing case law when developing the list of criteria.

In addition, the committee modified previously-proposed language that would have barred local governments from soliciting any type of designs or work products in bid documents. Now, while still prohibiting solicitation of designs or work products, the approved proposal encouraged local governments to discuss with bidders design "concepts or approaches to the project, including impact on project schedules." Such conversations with potential bidders would protect public dollars by ensuring that the local government knew of any innovative approaches to a project that would save on construction costs.

Because it came from an interim study committee, the approved proposal was eligible for introduction as legislation in the upcoming Short Session that begins tomorrow. This particular study committee addressed topics that lingered after passage of design-build legislation last year.

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Regulatory Briefs

An N.C. judge granted environmentalists' intervention last week in the State's enforcement cases against Duke Energy for coal ash contamination; these groups will have access to agency documents on the topic...The Southern Environmental Law Center sent the City of Burlington a Notice of Intent to Sue in late April, citing sanitary sewer overflows into the Haw River as violations of the federal Clean Water Act...Last week, EMC commissioners questioned the role played by the Environmental Defense Fund in paying for development of the state's river basin hydrologic modeling software...In another action item last week, the EMC advanced to public hearing rules regarding regulation of stormwater on oil and gas exploration sites...DEMLR will hold two more workshops in May regarding low-impact development, where participants will learn to use the new Storm-EZ Tool...DEMLR also finalized the new public airports chapter of State BMP Manual, which is available for use with airport projects...The EPA's proposed rule regarding the jurisdictional reach of the Clean Water Act was published in the Federal Register and public comment period will close on July 21; already, the National League of Cities has requested EPA and the Corps extend the comment period by 90 days...To aid in more practical enforcement of selenium limits in NPDES wastewater permits, EPA will likely propose a fish tissue-based water quality standard this month...In late April, the U.S. Supreme Court held that the Clean Air Act’s Good Neighbor Provision allowed EPA to consider the cost-effective allocation of emission reductions among upwind States, a ruling that could also apply to the agency's Chesapeake Bay nutrient management clean-up plan...Also in April, the OMB approved EPA’s Preliminary Third Regulatory Determination from the Third Contaminant Candidate List (CCL3) and it will go out for public comment soon...Last week, a U.S. House-Senate conference committee agreed on conference report regarding the Water Resources Development Act (WRDA) that would create a new EPA water infrastructure funding pilot – Water Infrastructure Finance and Innovation Authority (WIFIA) – allowing municipalities to seek direct, low-interest loans to infrastructure developers costing at least $20 million and bypass state revolving loan funds...Reacting to pressure from Congress over unspent SRF funds accumulating in states' fund balances, EPA issued a memo requiring states to spend all SRF funds appropriated through 2013 by September 2016...EPA and the U.S. Department of Defense agreed to settle two MS4 permit challenges, avoiding the potential for precedent-setting stormwater permit terms.

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