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NCLM News & Political Report

While legislative action may be grabbing all the headlines at this time of year, with respect to the environmental issues of most importance to cities and towns, the relevant political narrative is the U.S. Senate race between incumbent Sen. Kay Hagan and N.C. Speaker of the House Thom Tillis. Still the most expensive U.S. Senate race in the country, the seat represents the balance of power in the U.S. Senate, whereby the outcome of this race will likely determine which party controls the Senate--and therefore Congress--these next two years.

Consequently, the battle between the two political parties for this seat appears to have permeated many of the N.C. state agencies that interact with the federal government. Most publicly for the N.C. Department of Environment and Natural Resources (DENR), this increased federal attention brought subpeonas of agency staff by the U.S. Department of Justice following the Dan River coal ash spill in February. But the U.S. Environmental Protection Agency (EPA) has also apparently placed outsized pressure on DENR in recent months to adopt its preferred environmental policies and regulations, perhaps in part due to the differences in political party controlling DENR and the White House.

It looked like this political acrimony spilled over this month to affect the top three regulatory issues facing cities and towns. For example, as we explained below in "Agency Questioned on Impaired Waters List," DENR staff reported that EPA planned to disapprove part of the state's list of impaired water bodies, even though the listing process followed by the state was allowed in other states. This pressure continued in the state's negotiations with EPA regarding the Nutrient Criteria Development Plan, whereby the federal agency refused to accept North Carolina's original plan, before accepting a final plan late last month in which the state made major concessions to meet EPA demands ("Environmental Board Probes DWE Role in Rewriting Nutirent Plan"). And as reported by the Charlotte Observer this weekend in "N.C. plays catch-up on water standards," with respect to the state's proposed changes to water quality standards (also known as the "triennial review"), EPA continued to warn that the proposal scheduled for two public hearings this week did not go far enough to protect the state's waters. In response, League members have raised concerns with state regulators on all three issues.

In addition to this federal political pressure, state regulators continued to face homegrown political pressure as they implemented directives from last year's legislative activity. For instance, over the past year, environmentalists mounted significant opposition to the legislature and agency's plans to test nutrient-scrubbing SolarBee technology in Jordan Lake. However, just last week, the News & Observer reported that a final federal approval came for the project, clearing the last large regulatory hurdle for the project to proceed.

Opportunities for NCLM Involvement

Driving the League's involvement in these priority issues and scores of others, North Carolina's cities in recent years have supported an active regulatory advocacy program. This push has ensured that state and federal regulators considered the municipal perspective when making regulatory decisions. To continue that push, all League members now have the opportunity to submit proposed goals for this program that may guide the priorities the League pursues for the next two years. Goals submitted now through this process will receive consideration first by the League's Regulatory Action Committee, then potentially the League Board of Directors and full membership at the December 11 Advocacy Goals Conference.

In addition, League members with an interest in effective stormwater management are invited to join the Storm Water Association of North Carolina (SWANC), an affiliate organization of the League which will next meet July 28 in Kernersville. Formed by a group of stormwater managers from across the state, SWANC is the preeminent statewide organization to advocate for the interests of stormwater programs at the legislature and DENR. Membership is open to N.C. municipalities and others. As the leading voice for stormwater interests before state-level decision-makers, SWANC already influenced stormwater discussions by testifying before legislative committees, contributing comments on stormwater regulatory issues, and participating on state stormwater workgroups. This document explains the dues structure for the organization, and you may contact Sarah Collins for more information on how to join SWANC.

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Agency Questioned on Impaired Waters List

Upon learning that the U.S. Environmental Protection Agency (EPA) planned to disapprove part of the state's list of impaired waters -- which would result in adding 52 waters back to the 303(d) impaired waters list--members of the N.C. Environmental Management Commission (EMC) directed tense words toward the N.C. Department of Environment and Natural Resources (DENR) last week. Both EMC Chair Benne Hutson and Water Quality Committee Chair Steve Tedder expressed disappointment at the lack of support for the EMC-approved listing methodology from agency staff members who dealt with EPA. Stressing that he expected agency staff to strongly advocate for the Commission's positions, Hutson called DENR's explanation of the methodology to EPA "woefully inadequate" and said the language submitted to EPA appeared to be a placeholder.

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 water pollution restrictions for the affected watershed, usually in the form of a Total Maximum Daily Load (TMDL). The state's listing methodology assists in assessing whether water bodies meet water quality standards. 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. 

Defending N.C.'s Methodology to EPA

When explaining EPA’s objections to North Carolina’s new approach to listing waters last week, DENR staff told EMC commissioners that EPA favored a so-called “one in three” listing methodology for toxic parameters such as metals. Following that approach would require a state to list a water as impaired if one toxics sample in three years exceeded that state’s water quality standard. That EPA rule would mandate an impairment listing regardless of the age of the data (North Carolina's water quality sampling program has not collected metals data in waters since 2007), the extent to which the data exceeded the state's water quality standard, or the precision of the techniques used to gather the data.

In contrast, North Carolina’s new “90% confidence limit” methodology, selected by the EMC last year, would list a stream when a statistical analysis of the data indicated an impairment for that particular toxin with a 90% confidence level. When directing implementation of this new methodology, EMC members cited the ability of the methodology to more accurately integrate the size of the state's water quality database, sampling technique precisions, and the statistical confidence in the values utilized for listing water as impaired. Yet on Wednesday, agency staff told the EMC that EPA disagreed with North Carolina’s approach, which prompted questions from commissioners regarding how robust North Carolina’s explanation of the methodology was and whether adequate justifications were given to EPA.

Probing further, Commissioner Tedder requested information from agency staff regarding the methodologies followed by other states, particularly for listing toxics. In other states, EPA has not insisted on the “one in three” listing methodology. Instead, the approaches by other states for listing waters for toxics impairments included: higher minimums for the amount of data upon which to base a listing decision, use of best professional judgment as a factor in the decision-making, and the use of confidence limits such as that followed by North Carolina in this recent listing process. In trying to understand why EPA would allow different methodologies in other states—but not North Carolina—commissioners including Commissioner Kevin Martin stated that if EPA allowed the same 90% confidence limit methodology in other states, N.C. agency staff should more forcefully respond to EPA and provide a better justification for the use of the EMC’s preferred approach to listing waters.

Pursuing one of its top regulatory goals, the League pushed the EMC for nearly two years for the "90% confidence limit" methodology it ultimately adopted last year. That methodology resulted in more confidence in impaired waters listings. In addition, the methodology resulted in fewer waters being considered impaired for the 2014 list, as compared to previous years.

The League has been very involved in 303(d) impaired waters list and the listing methodology, and reported on them in previous EcoLINC articles:

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Environment Board Probes DWR Role in Rewriting Nutrient Plan

Commissioners serving on the Water Quality Committee of the N.C. Environmental Management Commission (EMC) questioned N.C. Division of Water Resources (DWR) staff Wednesday regarding the altered approach to North Carolina’s Nutrient Criteria Development Plan (NCDP), which included directives to develop statewide nutrient standards instead of site-specific standards for water bodies. Previous drafts of DWR's NCDP instead proposed to develop these water quality criteria (or standards) on a site-specific basis.

The NCDP is a roadmap for state regulators to use when developing nutrient management strategies such as the Jordan Lake Rules or Neuse Rules. With this letter, the U.S. Environmental Protection Agency (EPA) approved the State's NCDP in late June, although this final approved version differed significantly from previous versions produced by the State with stakeholder input. In response to queries from commissioners, DWR staff maintained that EPA would not approve the plan without (1) a commitment to develop statewide standards, and (2) a commitment to develop "numeric nutrient criteria" (NNC), a term defined in the Plan.

During the discussion, Committee Chair Steve Tedder asked for clarification on whether the agency's goal with the Plan was to have nutrient criteria for all waters in the state, and DWR staff concurred. As to the inclusion of numeric nutrient criteria, Chairman Benne Hutson said the EMC supported the inclusion of "narrative criteria"--or standards based on observed conditions in a water body that are not easily quantified--in the Plan's definition of NNC. Further, he noted that staff only changed the definition after the request of the League, rather than in response to the EMC's prior direction.

League-Suggested Change Included

As Hutson referenced in his question to the staff, the final NCDP contained an important clarification suggested by the League that will allow state environmental regulators to have more flexibility in meeting the mandates in the Plan. This clarification in the approved version ensured that the phrase “numeric nutrient criteria” (NNC) referred not just to total nitrogen and total phosphorus limits--which is the commonly understood meaning of the term--but also to numeric standards for "response variables" such as chlorophyll-a. Response variables reflect a water’s chemical and biological reaction to nutrient inputs and can indicate nutrient enrichment. 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 and result in harmful algae blooms.

Because most regulatory costs of addressing nutrient impairment in the state's waters falls to municipalities--which assume a primary responsibility for implementing the requirements of the federal Clean Water Act--the League membership made nutrient regulation its top regulatory advocacy goal. The Clean Water Act requires states to develop water body clean-up plans for impaired waters. In turn, with the clean-up plans, states require local governments to adhere to strict wastewater and stormwater limits to control discharges of nutrients to impaired waters. Excessive amounts of nitrogen and phosphorus can cause impairments in waters under certain circumstances.

DWR began developing the NCDP in late 2012, and since then, the Division solicited public comment four times. The League commented on the Plan each of these times. The NCDP is required as part of an agreement between DWR and 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 NNC development.

The League participated in all previous NCDP efforts and reported extensively on them in previous EcoLINC articles:

The State created a new email listserv for interested parties; sign up to receive updates on the stakeholder process.

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Commissioners Postpone Hydrologic Model Approval

Presented with information regarding the status of hydrological models for multiple river basins, members of the Water Allocation Committee of the N.C. Environmental Management Commission (EMC) decided Wednesday to delay approval of the models. Committee Chair Tommy Craven stated that the Committee hoped related legislation would pass and provide clarity to the Commission regarding the next steps for model approval. The hydrological models at issue were for the Roanoke River, Tar-Pamlico River, and Cape-Fear-Neuse River Basins.

Hydrologic models simulate the flow of all waters in a river basin, taking into account surface and ground waters, transfers into and out of the basin, other withdrawals, ecological flow requirements, and other data on the flow of water. These calculations can predict which surface water systems will experience future shortages, both during droughts and normal flow times.

Ecological Flow Component Sparks Controversy

However, with the three models discussed Wednesday, state environmental regulators for the first time included data on ecological flow, which is a percentage of a river's flow set aside to maintain aquatic life. Agency staff stated that this ecological flow component was based on a report by N.C. Ecological Flows Science Advisory Board (EFSAB), which studied the topic for over two years. While agency staff have long-maintained that this data would only be used for planning purposes and not for regulation, in the lead-up to Wednesday's meeting, commenters including municipal interests stated that the way DWR had chosen to implement the EFSAB's recommendations amounted to regulation.

Given the uncertainty in how the agency would use the information from this scientific report, commissioners made sharp comments regarding the effects of the ecological flow component of these models, disagreeing with agency staff who presented their work on the models. Commissioners' comments reflected the concerns of cities, other water users, and some members of the EFSAB. Those critics contended that inclusion of faulty ecological flow data in the models would unnecessarily limit the amount of future water withdrawals available for uses such as public water supplies.

Potential E-Flows Legislation

In response to doubts over the science advisory board's conclusions, EMC Chair Benne Hutson pointed out that pending legislation could spur further review of the EFSAB report and work. HB 1057 DENR Study IBT/EMC Eco Flow Study would task the EMC with further studying the ecological flows component of these models, a step many Commissioners seemed to support. Hutson also noted that the bill would allow the EMC to continue approval of hydrologic models without using ecological flow data while the study was underway. He also explained that the bill would allow him to appoint members to a science advisory board to guide the EMC in its examination of the science behind the EFSAB's recommendations. Read more about this legislative effort in "Water Supply Bills," below.

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Water Supply Bills

This article details new water supply legislation introduced since the June 2014 edition of EcoLINC. It also provides updates on any previously-introduced legislation that advanced since that June report.

  • Source water protection plans. Within one week, HB 894 Source Water Protection Planning went from being a bill that dealt with stormwater to one with entirely new language that mandated all unflitered public water supply systems develop and implement a source water protection plan. Signed into law by Governor Pat McCrory at the end of last month, this law directed the N.C. Commission for Public Health to develop a template for water systems to use in this new planning effort. The law also directed the Commission to adopt rules implementing the plan requirement.
  • Ecological flows study. In language added to a bill originally introduced to study the state's interbasin transfer laws, the House directed state regulators to reexamine the scientific basis for ecological flow calculations. Ultimately winning unanimous House approval, HB 1057 DENR Study IBT/EMC Eco Flow Study would task the N.C. Environmental Management Commission (EMC) with further studying the ecological flows component of the state's hydrologic models, which simulate the flow of all waters in a river basin. When inserted into these models, ecological flow is a percentage of the river's flow set aside to maintain aquatic life. The recommendations from a previous effort to study ecological flow caused controversy due to concerns about the validity of the set-aside percentage. (Read about the EMC's discussion of this controversy in "Commissioners Postpone Hydrologic Model Approval," above.) The bill would also allow the EMC to create a science advisory board to assist its investigation. Importantly, the bill would allow the EMC to recommend amendments to the state law that required consideration of ecological flow in the first place, if the EMC determined that the original ecological flow law was infeasible to implement. In addition, while the study was underway, the legislation would also allow the EMC to continue approving hydrologic models so long as the models did not include ecological flow data. The bill now awaits a hearing in the Senate. 
  • IBT laws/Kerr Lake. In addition to the ecological flows language discussed immediately above, the House also added another provision to HB 1057 DENR Study IBT/EMC Eco Flow Study. This provision would apply relaxed interbasin transfer (IBT) laws to Kerr Lake, which is receiving consideration for an interbasin transfer certificate now. Those relaxed laws would mirror those now in effect for the Central Coastal Plain Capacity Use Area and would speed up the IBT certificate process that was initiated five years ago. State law requires an IBT certificate when withdrawals larger than two million gallons a day are not returned to the same river sub-basin. While this bill awaits a hearing in the Senate, that chamber took previous action and included language identical to this provision in SB 734 Regulatory Reform Act of 2014, edition 4, section 3.14.
  • IBT study. Leaving the original IBT study language intact, the House advanced HB 1057 DENR Study IBT/EMC Eco Flow Study. The bill now awaits Senate action, though this provision of the bill was also included in the Senate's final version of SB 734 Regulatory Reform Act of 2014 (edition 4). Read previous League coverage of this bill in last month's EcoLINC.

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Wastewater Bills

This article details new wastewater legislation introduced since the June 2014 edition of EcoLINC. It also provides updates on any previously-introduced legislation that advanced since that June report.

  • Reclaimed water. The House unanimously passed a bill last month that completely rewrote the original language to instead allow a public water system to mix its source water with reclaimed water, under certain conditions. Reclaimed water is highly treated wastewater, and in other areas of the country, it is used to augment public water supplies. In these circumstances, the source water undergoes full treatment to drinking water standards before distribution to the public. If passed, SB 163 Reclaimed Water as a Source Water would open up this use of reclaimed water--unprecedented in North Carolina. In doing so, it would achieve one of the League's advocacy goals for expansion of water supply options through use of reclaimed water. The Senate failed to concur in these House changes to the bill, citing technical points that could be worked out in a conference committee. The Senate appointed conferees yesterday, and the League expects a conference committee to recommend final language to the full General Assembly before this session adjourns.
  • Emerging contaminants study. In the same reworked bill that contains the reclaimed water language explained immediately above, legislators included a study of emerging contaminants to be performed by the N.C. Environmental Management Commission (EMC). Although unregulated, "emerging contaminants" such as pharmaceuticals, personal care products, flame retardants, perflourinated compounds have garnered national attention for their presence in wastewater discharges. However, neither the state nor federal governments currently regulates emerging contaminants. That lack of federal regulation, combined with a prohibition in N.C. law on environmental regulations that are "more restrictive than" federal law, would render moot any recommendations from this study that would establish new water quality standards.
  • Groundwater standards study. In its omnibus environmental regulatory reform bill, the House included a provision (Section 11) to study the state's groundwater quality standards rules. Specifically, the provision responded to long-held points made by cities and industry that the state's groundwater standards-setting rule rigidly forces regulators to choose the lowest value of among six data points, even if a federal drinking water standard was not as strict as that lowest value. (Read more about this debate in "Groundwater Standards Vote Elicits Heated Debate at EMC," March 2012 EcoLINC). The League expects the House and Senate to work out differences between the chambers on environmental regulatory reform provisions such as this one and propose a compromise version for consideration by the full General Assembly before this session adjourns.
  • Fertilizer. An amendment to HB 366 NC Farm Act of 2014 added previously-negotiated language regarding local regulation of fertilizers to the bill (Section 2). This amendment also contained additional text that would preserve a local government's ability to regulate other explosive, corrosive, inflammable, or radioactive substances. Finally, because the unamended provision appeared in two other bills that are still viable this session, this section of the NC Farm Act contained language to ensure that its provisions would trump those in any other bill. Because each chamber treated this bill differently, legislators appointed a conference committee to work out differences and report compromise language back to the full General Assembly. The League expects a vote on this bill before the session adjourns. Read previous League coverage of this provision in last month's EcoLINC.
  • Spill notification. Both the House and the Senate included language shortening the window of time for reporting and notifying the public of wastewater spills in SB 729 Coal Ash Management Act of 2014. The language was unchanged from previous provisions contained in this bill and others under consideration this session (read details in previous League coverage). The bill now awaits appointment of conferees from each chamber to iron out differences in each chamber's version of the bill.
  • Groundwater compliance boundaries. When it took up SB 729 Coal Ash Management Act of 2014, the House rewrote a groundwater compliance boundary provision that originally applied only to operators of coal ash facilities. Now, that language applies more broadly to other facilities, such as lands onto which municipally-generated Class B biosolids are applied. While the League is still seeking changes to this language to limit unintended consequences, it supports this broader scope of the new House language. The bill now awaits appointment of conferees from each chamber to iron out differences in each chamber's version of the bill. Read previous coverage of the House language in this League LINC Bulletin article.

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Stormwater Bills

This article details stormwater legislation introduced since the June 2014 edition of EcoLINC. It also provides updates on any previously-introduced legislation that advanced since that June report.

  • Consolidated buffer rules disapproval. Senate environment committee co-chair Sen. Andrew Brock introduced SB 883 Disapprove EMC Buffer Rule late last month. Typically, the legislature uses "disapprove rules" bills to insert replacement language for the agency rules they wish to revise. Such new language has not yet been proposed for this rule set, though the League expects legislators to eventually propose rewritten rule provisions that address concerns by staff in the state's Ecosystem Enhancement Program as well as by private mitigation bankers. The League worked with state regulators on this rule set extensively for many years, culminating in final approval by the N.C. Environmental Management Commission (EMC) last summer. Therefore, the League will seek to protect any favored language from the rules passed by the EMC. Read previous coverage of the League's involvement in these buffer rules in "EMC Approves Rules that Assist Buffer Mitigation in Urban Areas," June 2013 EcoLINC.
  • Cluster mailboxes. The House version of its omnibus environmental regulatory reform bill contained a provision (Section 29) to address a growing controversy involving a new U.S. Postal Service policy to require cluster mailboxes in new residential developments. The policy, while not in writing and not publicized by the Postal Service, is nonetheless being selectively enforced in certain N.C. jurisdictions by the Postal Service. The N.C. Homebuilders Associations supported this provision, which would excuse developers from requirements to build additional stormwater control measures when the Postal Service mandated a developer to retrofit previously-approved developments with cluster mailboxes. The provision, if passed into law, would expire at the end of next year. The League expects the House and Senate to work out differences between the chambers on environmental regulatory reform provisions such as this one and propose a compromise version for consideration by the full General Assembly before the session adjourns.
  • Floodplain enforcement in ETJ. Rep. Chris Whitmire successfully amended SB 734 Regulatory Reform Act of 2014 to add a provision (Section 3.16) that closed a loophole in local government regulations within a city's extra-territorial jurisdiction (ETJ). An ETJ is an area outside city limits in which a city may exercise certain planning and land use regulations. Under a 2011 law, any property in an ETJ that was classified as a "bona fide farm"--a very low bar in N.C. law--was exempt from all municipal regulation. However, that law did not give counties the ability to impose land use regulations on bona fide farms in an ETJ, either. Therefore, those properties became the only places in a county with no local government land use regulations allowed. Rep. Whitmire's provision sought to grant some of this lost regulatory authority back to counties (not municipalities), for the purposes of complying with federal floodplain requirements. If passed, allowing this local government regulation would ensure that property owners' flood insurance premiums did not rise due to a lack of local floodplain regulation. The future of this bill remains uncertain now, with the Senate not indicating a desire to work out differences with the House.
  • Stormwater BMP minimum design criteria. Giving a stormwater device design group more breathing room to develop "minimum design criteria" for certain stormwater best management practices, the House extended a key reporting deadline by five months in SB 38 Amend Environmental Laws 2014 (section 33). If enacted, the law would give the group until February to issue its final recommendations for these practices. The League participates in this workgroup, which grew out of 2013 legislation that mandated development of the design standards for stormwater devices (read background in "Minimum Design Criteria Team Begins Work," April 2014 EcoLINC). The League expects the House and Senate to work out their differences on environmental regulatory reform provisions such as this one and propose a compromise version for consideration by the full General Assembly before the session adjourns.
  • Fertilizer. An amendment to HB 366 NC Farm Act of 2014 added previously-negotiated language regarding local regulation of fertilizers to the bill (Section 2). This amendment also contained additional text that would preserve a local government's ability to regulate other explosive, corrosive, inflammable, or radioactive substances. Finally, because the unamended provision appeared in two other bills that are still viable this session, this section of the NC Farm Act contained language to ensure that its provisions would trump those in any other bill. Because each chamber treated this bill differently, legislators appointed a conference committee to work out differences and report compromise language back to the full General Assembly. The League expects a vote on this bill before the session adjourns. Read previous League coverage of this provision in last month's EcoLINC.
  • Gravel. The House tried a second time last month to advance legislation recommended by an interim study commission regarding state and local regulation of gravel, this time including the language in SB 38 Amend Environmental Laws 2014 (Section 28). (Read more about this ongoing debate in last month's EcoLINC as well as "EMC Initiates Permanent Rulemaking to Define Gravel," below.) The House also approved the same language in a stand-alone bill in early June. While the Senate has yet to consider it, the League anticipates the Senate will include this language in a compromise version negotiated with the House and presented to the full General Assembly for consideration before the session adjourns.
  • Isolated wetlands. In a dueling back-and-forth between the two legislative chambers this session regarding how much to modify the state's isolated wetlands regulations, the House softened a Senate proposal that would significantly scale back the land disturbance thresholds that triggers state regulation. Instead, a provision in SB 38 Amend Environmental Laws 2014 (Section 8) would require mitigation for disturbances in isolated wetlands when one acre or more was disturbed east of I-95, and when one-third of an acre or more was disturbed west of I-95. However, in this bill, the House agreed with the Senate that the mitigation ratio for these disturbances would be 1:1. The League expects the House and Senate to work out differences between the chambers on environmental regulatory reform provisions such as this one and propose a compromise version for consideration by the full General Assembly before the session adjourns.

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Utility Operations & Development Review Bills

This article contains updates on previously-introduced utility operations and development review legislation that advanced since the June 2014 edition of EcoLINC.

  • Local government environment ordinances. Both the House and Senate demonstrated their support for this League-supported provision, including it in multiple bills already this session. Last month, the House included it in its omnibus environmental regulatory reform bill, SB 38 Amend Environmental Laws 2014 (Section 12). The League expects the House and Senate to include this provision in any proposed compromise version of the bill offered for consideration by the full General Assembly before this session adjourns.
  • Infrastructure needs study. After receiving final approval by both chambers, Governor Pat McCrory signed HB 1043 Prequalification Update into law late last month. A provision authorizing a study of the state's infrastructure needs, including water and wastewater system needs, was unchanged; read previous League coverage of this bill in last month's EcoLINC.
  • Design work/RFQs. The public contracting bill discussed immediately above, HB 1043 Prequalification Update, also contained a provision that placed limits on what design work government units could solicit as part of a Request for Qualifications. Governor McCrory signed that bill into law late last month. Read more background on this provision in last month's EcoLINC.
  • Sedimentation/erosion control plan review. A pair of bills dealing with how local governments review and approve sedimentation/erosion control plans in specific circumstances passed the House and now awaits Senate action. Read the full background and get links to the legislation in last month's EcoLINC.
  • Technical review of engineering plans. Even though the House passed this language as a stand-alone bill in early June, that chamber included identical language in its omnibus environmental regulatory reform bill, SB Amend Environmental Laws 2014, passed later last month. The provision standardized State and local review of engineering plans such as stormwater, sedimentation/erosion control, and water and wastewater system designs. Read the full background in last month's EcoLINC.

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Regulators Propose Approval Process for New Stormwater Control Designs

Municipalities could gain more flexibility in complying with nutrient regulations thanks to a state agency effort to approve additional measures for stormwater nutrient reduction. Earlier this month, N.C. Department of Environment and Natural Resources (DENR) released a guidance document outlining a proposed approval process to establish new alternative nutrient load reduction measures for parties subject to nutrient management strategies.

Nutrient management strategies are a set of state regulations designed to reduce nutrient loading to restore full designated uses to state waters. Current strategies include the Neuse, Tar-Pam, Jordan, Falls and Randleman. However, with the recently-approved Nutrient Criteria Development Plan, the State intends to establish conforming state nutrient regulations in other areas of the state. Municipalities and developers in all of these areas would have the option to use the measures approved under this new DENR process.

Because municipalities assume a primary responsibility for implementing the requirements of the federal Clean Water Act, most regulatory costs of addressing nutrient impairment in the state's waters fall to municipalities. This effort to approve additional measures for stormwater nutrient reduction could give municipalities more flexibility in complying with nutrient regulations. Having more flexibility parallels the League's Core Municipal Principle on Environmental Protection's recognition that "environmental laws, practices and regulations must be science-based, feasible, and equitable, with flexibility to comply in the most cost-effective manner."

Cities Benefit from More Options

Cities have long requested these additional measures, which became necessary when municipalities began trying to achieve reductions in nutrient runoff from existing development. Some of the comprehensive nutrient management strategies listed above contain requirements to retrofit these previously-developed areas with stormwater control devices, a challenge in many dense urban areas with limited space. In theory, having additional tools to meet these retrofit targets would ease cities' ability to comply with the existing development regulations.

Cities may also realize another benefit of having additional DENR-approved stormwater devices that can control nutrients: if those devices captured excess nutrients beyond regulatory requirements, they could be eligible for trading under one of the state's nutrient trading markets.

Comment Now on Approval Process

The Nutrient Scientific Advisory Board (NSAB) oversaw development of the approval process outlined in the guidance document. The NSAB includes representatives from local governments, primarily those jurisdictions subject to the Jordan Lake Rules. When evaluating a device under this new process, DENR proposed to look at innovative measures that lacked nutrient credits and the associated design standards to see if they should be available to regulated local governments and state/federal entities. Then, DENR outlined a tiered approval rating system that reflected the level of confidence associated with the devices' estimated load reductions and their sustained achievement. 

The NSAB and the N.C. Division of Water Resources (DWR) clearly stated that this document was guidance. Now that it has developed a process, DWR seeks the public's input. Eventually, the final product may help facilitate future nutrient rulemaking. Submit comments to by July 31.

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EMC Initiates Permanent Rulemaking to Define Gravel

The N.C. Environmental Management Commission (EMC) voted Thursday to initiate permanent rulemaking that would include a definition of "gravel" in state rules and address concerns over excess stormwater runoff from non-paved surfaces. This new rule would replace an identical temporary rule that will expire in January 2015. That temporary rule clarified a provision in HB 74 Regulatory Reform Act of 2013 that exempted gravel from the calculation of "built-upon area," but failed to define the term "gravel". With the temporary rule, the EMC passed defined gravel as "a clean or washed, loose, uniformly-graded aggregate of stones from a lower limit of 0.08 inches up to 3.0 inches in size."

During discussion of the permanent rule last week, Chairman Benne Hutson noted that if the legislature enacted HB 1166 Clarify Gravel Under Stormwater Laws, that new law would render the Commission's rulemaking unnecessary because it would remove "gravel" from the exemptions to "built upon area," eliminating the need for the Commission's more detailed definition of the term. In that event, Hutson said, the EMC would likely schedule a special August Commission meeting to pass an emergency rule that would eliminate a gap in the enforcement authority of state and local stormwater officials.

Proposed Gravel Legislation

The pending legislation, HB 1166 Clarify Gravel Under Stormwater Laws, matched a recommendation from the interim Environmental Review Commission (ERC). If enacted, the bill would clarify how state laws treated gravel for the purposes of stormwater regulations. The bill removed the term "gravel" from the exemption of "built-upon area," and in addition, it directed N.C. State University to study the infiltration rates of various aggregate surfaces (read previous League coverage).

This proposal grew out of interim legislative activities in which the ERC conducted an exhaustive study of the topic. Through that study, the ERC recognized that aggregate materials colloquially called "gravel" functioned with varying degrees of perviousness that depended on the material's ability to infiltrate water. As a result of findings from that study, the bill proposed to reverse a 2013 law that declared all aggregate-covered surfaces were pervious, a conclusion not based in science. Bill sponsor Rep. Ruth Samuelson stated that the proposal provided state and local regulators the tools to enforce the existing statute correctly.

Gravel Rulemaking

Previously, the League, along with its affiliate organization, the Storm Water Association of North Carolina (SWANC comments here), submitted comments expressing support of the EMC's temporary rulemaking proposal because it allowed local stormwater programs to remain in compliance with their regulatory mandates. Likewise, the League remained in support of the EMC's push to adopt the temporary rules as permanent rules. In addition, SWANC Board member Daryl Norris spoke in favor of the proposed temporary rule at a public hearing in January. In anticipation of this permanent rulemaking, the League's comments also offered suggestions that would address the extent of rainfall infiltration allowed by various non-paved surfaces. Those suggestions included the following science-based considerations:

  • The substrate underneath a non-paved surface and its level of compaction when prepped for aggregate materials to be laid on top, measuring the extent to which the substrate reduces infiltration
  • The extent of permeability of certain materials, which would likely be incorporated into the State’s Best Management Practices Manual to serve as a guide to designers and design reviewers
  • The extent of porous openings in the non-paved material
  • The extent of land disturbance nearby the non-paved surface that may direct runoff onto the non-paved surface being evaluated
  • The level of protection from siltation and clogging offered by the non-paved surface
  • The degree of the slope to which the non-paved materials were applied
  • The type of underlying soils over which substrate and non-paved materials were applied
  • The rate of compaction of the non-paved material over time
  • The volume of stormwater stored by the non-paved surface
  • The level of ongoing maintenance required for these surfaces over time, and the extent to which it required operating and maintenance agreements from the property owner
  • The integration of this examination into the N.C. Division of Energy, Minerals, and Land Resources' (DEMLR) ongoing workgroups, such as the one created by S.L. 2013-82 directing DEMLR to develop minimum design criteria for stormwater devices

Permanent Rule Next Steps

The permanent rule required the inclusion of a fiscal note. In the fiscal note, the N.C Division of Energy, Mineral and Land Resources (DEMLR) cited the many benefits of the rulemaking. Those benefits included:

  • Providing clarity to what constituted "gravel," making the rule easier to understand. According to the agency, this clarity should translate to less time spent by permittees on applications and less time spent by DEMLR staff providing assistance to applicants.
  • The ability for developers to use gravel, as defined, in place of other aggregate or paving surfaces.
  • The allowance of additional impervious surfaces on a development site, which could mean that the development remained under a density threshold exempting it from stormwater treatment. For example, density thresholds apply in the Falls Lake New Development Stormwater rule.

As a result of the Commission's vote last week, the permanent rule now proceeds to public hearing and public comment period. The EMC tentatively scheduled its next consideration of the permanent rule for November. Read more detail about the tug-of-war between state legislators and regulators on this topic in "Legislators, Regulators Take Dueling Actions over Gravel Provision," March 2014 EcoLINC).

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Regulatory Briefs

Public hearings for proposed amendments to water quality standards - the triennial review - will be held on July 15 in Raleigh and July 16 in Statesville...DENR also announced a series of three public hearings on the state's new oil and gas rules, which will regulate onshore natural gas extraction...U.S. Army Corps of Engineers has approved the SolarBee project, an attempt to improve water quality in Jordan Lake...The UNC Environmental Finance Center published its catalog of green infrastructure and stormwater finance publications...The N.C. Division of Water Infrastructure won a key change from the State Auditor last week that will allow it increase water and wastewater infrastructure spending...In June, EPA approved 21 alternative analytical methods to measure levels of contaminants in drinking water and determine compliance with drinking water regulations...Also in June, EPA announced that in its next unregulated contaminant monitoring rule (UCMR4) under the Safe Drinking Water Act, it would consider shorter monitoring periods, compressed monitoring frequency, and more selective criteria for contaminant selections; the final measure will be available in 2016...EPA's Environmental Appeals Board ruled in early July against a permit challenge that sought to impose strict "daily" discharge limits on an Idaho wastewater plant's NPDES permit, holding that a facility does not necessarily need to meet daily discharge limits for its waste load allocations...EPA delayed by a year its target for finalizing its water quality standards rule; May 2015 is now the goal for final action, which faced criticism that the antidegradation policies in the rule would be an illegal intrusion into states' power...EPA also recently extended the comment period for the draft updated national recommended water quality criteria to August 13, 2014...EPA also re-opened the comment period for the draft water quality criterion for selenium in response to stakeholder requests, extending the period to July 28, 2014...In addition, EPA extended the comment period for the proposed rulemaking concerning hydraulic fracturing chemicals and mixtures to September 18, 2014...Lastly, EPA and the Corps extended the comment period for the proposed jurisdictional rule regarding the definition of "Waters of the US" under the CWA to October 20, 2014...Concurrent with that extended comment period, EPA announced that an EPA Science Advisory Board would conduct an informal review of the scientific and technical basis for the proposed rule...In recent related litigation, a federal court recognized that EPA should clarify the jurisdictional scope of the CWA in relation to groundwater...Related to the jurisdictional reach of the CWA, the US House appropriations committee's 2015 interior and environmental spending bill released July 8 would prohibit EPA from adopting proposed changes to the definition of “navigable waters” proposed in the "Waters of the US" jurisdictional rule...In addition, the US Senate stalled in considering energy and water spending bills in mid-June over fears of a Republican amendment to block EPA's climate regulations and the "Waters of the US" jurisdictional rule...Although it seems House appropriations will not fund the Water Infrastructure Finance and Innovation Authority (WIFIA), EPA announced it still planned to launch the program...As part of the Obama administration's climate action plan and revisions of EPA standards of performance for municipal solid waste landfills, EPA may soon require new and existing municipal landfills to limit methane emissions...As an additional result of climate change, a report stated that cities could face increased legal liability regarding flooding unless they began to document anticipated changes to their stormwater and floodplain programs that reflected preventive measures to address climate change...Environmental groups asked a federal court to reinstate EPA's CWA rulemaking that would require CAFOs to report discharges and other data.

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