Skip to Main Content



^ Back to Top

NCLM News & Political Report

Current developments in all three branches of our state government promise to affect -- perhaps profoundly -- the way cities and towns provide environmental services.

Judiciary

While not always the most high-profile branch of government, in the past month, the judicial branch has taken steps that could fundamentally alter the provision of municipal water and wastewater service in the state.

First, on March 27, a Wake County Superior Court judge struck down part of last session's annexation reform law. In doing so, the judge ruled unconstitutional a key provision of the law: a process by which property owners in the area proposed for annexation could petition to stop the annexation. In response, the legislature will likely respond to calls by annexation reform proponents to revisit the law in this upcoming legislative Short Session. Any further reforms to restrict municipal annexation could remove the business justification for extension of water and wastewater service beyond city limits.

And in a case with large implications for public water supply water rights, on April 13, the N.C. Supreme Court agreed to hear the L&S Water Power v. Piedmont Triad Regional Water Authority appeal. Lower court rulings in this litigation had conferred an ownership right to the flow of water by hydroelectric power generator owners downstream of the Randleman dam. The lower courts then ordered the Authority, as owner of the Randleman dam, to pay compensation to the hydroelectric power generators for a taking of the downstream water.

The Authority, backed by an amicus brief submitted by the League, argued that longstanding N.C. water law does not confer water ownership rights on owners of riparian lands, which are those lands immediately adjacent to water bodies. In briefs to the N.C. Supreme Court, the League will continue to make these same arguments in support of the Authority and the affected local governments.

Executive

Meanwhile, in the executive branch, the Governor has made her final appointments to the N.C. Environmental Management Commission (EMC). As the state's primary environmental regulatory body, the EMC conducts nearly all the rulemaking that affects N.C. cities and towns.

Beginning with the May EMC meeting, environmental attorney Amy Pickle will begin a six-year term of service. In addition, over the past year, the Governor has re-appointed Chairman Steve Smith, Commissioner Thomas Cecich and Commissioner Dickson Phillips III for six-year terms. None of these appointees are strangers to local government perspectives on environmental issues, and the League looks forward to a continued good working relationship with these commissioners.

Also, in the N.C. Department of Environment and Natural Resources (DENR), Division of Water Quality (DWQ) Director Chuck Wakild has selected Ted Bush to serve as DWQ Deputy Director. Ted has enjoyed a long career within DENR, most recently as Section Chief of the Aquifer Protection Section.

Ted wrote to League members, "I believe you are a critical part of the many relationships that must exist to produce effective environmental management within our state. I will be very interested in your input and feedback in moving forward in this new direction." The League membership also strives to be a good partner in environmental stewardship.

Legislature

Finally, the N.C. General Assembly is set to capture headlines and attention again when it reconvenes for the 2012 Short Session on May 16. In the month leading up to the Short Session, numerous legislative committees examining environmental issues will hold their final meetings, thereby setting up the topics which will likely be debated during session. See the full list of meetings in the calendar below.

Legislative leaders have repeatedly stated their intentions for a session lasting no longer than July 4, so if you have concerns to be addressed through local legislation, hold discussions with your local legislative delegation now. In next month's issue of EcoLINC, we will offer a more extended Short Session environmental issues preview.


^ Back to Top

Mercury TMDL Destined for EMC Approval

Amid challenges to a statewide decision to declare all state waters as impaired for mercury, the N.C. Environmental Management Commission (EMC) will vote on an associated water body clean-up plan at its July meeting. The League supports the EMC's planned vote.

This unusual step by the EMC comes as the state is poised to release the details of its mercury clean-up plan, perhaps as early as this week. Industries and local governments will face further regulation if the plan is implemented.

Typically, a water body clean-up plan -- or Total Maximum Daily Load (TMDL), its name in the federal Clean Water Act -- is developed by the N.C. Division of Water Quality (DWQ). Throughout the TMDL development, DWQ scientists collect and analyze data before capping the discharges a water body can absorb while returning to a non-impaired state. DWQ then requires reductions from dischargers, such as municipal wastewater treatment systems, through limits in their federal discharge permits.

EMC Exercises Authority

With past TMDLs, the EMC has not exercised its authority to develop and approve the plans, though the League has urged the EMC to become more active.

The N.C. mercury TMDL is unusual in four respects, leading the EMC to consider the plan. Read this March 2012 EcoLINC article for more background on the atypical features of this TMDL:

  • It is based on a large-mouth bass fish consumption advisory to protect human health;
  • DWQ declared these waters to be impaired by using data collected and analyzed by an agency besides DWQ;
  • The impairment applies statewide; and
  • Models showed that nearly the entire source of mercury in N.C. waters (98%) comes from the air, mostly from power plant emissions originating outside North Carolina.

Drawing on the departures from ordinary TMDL development listed above, industries with regulated mercury air emissions or water discharges contested DWQ's decision to declare all the state's waters as impaired for mercury. The League made similar arguments in this set of March 2012 comments.

Next Steps

Recognizing the need for more deliberation on this precedent-setting TMDL, DWQ will hold two stakeholder meetings to allow input from affected parties. These meetings will follow the imminent release of the TMDL implementation plan, which will detail the types of permit restrictions industries and local government wastewater dischargers will face. One of these meetings will take place in the western part of the state, the other in the east.

Then, for a 30-day period after those meetings, DWQ will accept public comment on the TMDL implementation plan. The League will submit comments during this time, as it has for numerous past TMDL-related issues. The EMC vote will follow the public comment period.

Read the League's background description of the mercury TMDL.


^ Back to Top

Legislators to Receive Hydraulic Fracturing Study

An overview study of potential issues related to the practice of hydraulic fracturing is bound for the legislature by May 1. The study concluded that hydraulic fracturing, the process of extracting natural gas from underground rock shale, may be performed safely in North Carolina with the proper protections in place.

The study, conducted by three state agencies including the N.C. Department of Environment and Natural Resources (DENR), comes pursuant to a state law passed by the N.C. General Assembly in 2011. DENR released a draft of the study in advance of two public hearings held in March. Read "The News & Observer" account of the first public hearing.

The process of hydraulic fracturing works by injecting a mixture of water, sand, and chemicals deep underground, fracturing open the shale and allowing natural gas to flow to the surface. Because North Carolina lacks the necessary laws to regulate extraction of oil and gas, hydraulic fracturing is currently prohibited in the state.

State-Level Support

However, numerous legislators, Governor Perdue, and nearly all gubernatorial candidates have expressed varying degrees of support for development of the hydraulic fracturing industry. Legislators will likely discuss initial steps toward legalization in the upcoming Short Session that begins May 16.

The 444-page draft study assesses necessary gaps in state law the legislature must address to allow development of this resource. With contributions from the N.C. Department of Commerce and the N.C. Department of Justice's Consumer Protection Division, DENR examined environmental, economic, social, legal, and administrative issues surrounding hydraulic fracturing.

The study included twenty recommendations for legislators to consider when deciding how to proceed in allowing hydraulic fracturing. The Environmental Review Commission, which includes both senators and representatives, will receive the final recommendations and DENR report by May 1.

In addition, two additional legislative committees -- one for the House and another for the Senate -- have studied the issues that accompany development of the hydraulic fracturing industry since the legislature adjourned last summer. Those committees may also make policy recommendations on hydraulic fracturing.

Each of those three committees will meet one more time before Short Session. See the calendar below for meeting dates and times.

As reflected in the wide range of topics examined in the DENR study, legislators will likely engage in a multi-faceted discussion when they return to Raleigh in May.

League Position on Hydraulic Fracturing

The League Board of Directors has prioritized the issue of hydraulic fracturing, approving the following policy position on the recommendation of members of the Planning & Environment Legislative Action Committee: "Support legislation in the area of hydraulic fracturing and natural resource extraction that protects the health, safety and welfare of the citizens and environment, while facilitating necessary economic development for the overall well-being of North Carolina."

The League will engage directly on the issue, particularly discussions regarding the impacts to water supply, wastewater treatment, stormwater runoff, road and bridge systems, public safety, emergency response, and zoning authority.

Background

To better understand the practice of hydraulic fracturing, the League also hosted a symposium in December of 2011.

In the context of a national hydraulic fracturing boom, N.C. legislators became interested in developing the resource in the state upon findings from the N.C. Geological Survey which estimated that reserves of natural gas exist in commercial quantities in North Carolina.

Those reserves are likely to be found in the Triassic Basin, which begins in Granville and Person counties, runs southwest through a swath of central North Carolina that dips into the Sandhills region, and ends in Anson county. In addition, reserves may exist in pockets of Rockingham, Stokes, and Yadkin counties.

Read more background on hydraulic fracturing in the February 2012 issue of EcoLINC.

 


^ Back to Top

N.C. Stormwater Group Seeks Further Research on Urban Stream Recovery

In response to what it views as the most pressing scientific need for urban watersheds, a group of the state's largest stormwater utilities has requested research proposals that explore the potential of urban stream recovery.

The Stormwater Working Group (SWG), housed within a water research arm of the University of North Carolina, decided to award research dollars only to proposals that specifically aligned with its priority of examining the ability of waters in urbanized settings to recover biological health.

Biological Stream Impairment

Aquatic life present in these waters, typically found in the state's Piedmont region, displays signs of impairment. Section 303(d) of the federal Clean Water Act (CWA) requires states to evaluate the health of their waters and “list” those exhibiting impairments on the 303(d) list. Over the past twenty years, the N.C. Division of Water Quality (DWQ) listed numerous Piedmont streams, attributing the degredation to biological impairment.

Scientists generally understand that biologically impaired urban streams suffer due to increased stormwater runoff that accompanies development. 

However, the SWG identified a research gap for whether and how these impaired streams may permanently recover in an enduring urban environment. Limited national research on this subject suggests that such streams do not regain pre-development hydrology and biological health. For its part, the U.S. Environmental Protection Agency has launched a new watershed recovery tool that aims to assist in estimating the potential for waters to recover.

To address this research gap, the SWG has committed to withholding its funding allocation for a second straight year unless it received proposals in line with its priorities. Interested researchers may discuss this priority with SWG staff in advance of submitting a proposal.

Little Alamance Creek

DWQ considers streams listed on the 303(d) list for biological impairment as a priority for the water body clean-up plans called "Total Maximum Daily Loads" (TMDLs), so named for the term given to these plans in the CWA.

To begin addressing this priority, in January 2011, DWQ issued a draft TMDL for the Little Alamance Creek watershed in Alamance County. This proposed TMDL raised many concerns from local government groups across the state, including the League.

Chief among the concerns voiced by local governments was the fact that the TMDL sought to control the amount of impervious cover -- surfaces that prevent water from soaking into the ground -- as a surrogate for biological integrity. This novel TMDL approach originated with a TMDL in Connecticut. In the view of local governments, the approach did not represent a valid method for recovery of North Carolina's Piedmont region urban waters.

In response to the concerns, DWQ agreed to allow the governments affected by the proposed Little Alamance Creek TMDL to instead formulate an alternative water body clean-up plan, under a set of guidelines for a Category 4(b) demonstration. A template for such a demonstration does not exist in North Carolina.

To assist the effort, the League facilitated a series of meetings that included DWQ staff, the affected governments for the Little Alamance Creek TMDL, and other interested Piedmont local governments facing similar regulation in the future. The group committed to assisting the local governments choosing to pursue the Little Alamance Creek Category 4(b) demonstration.

Municipal Committment to Urban Stream Recovery

Coupled with the firm SWG request for research in this area, League members are taking strong steps to work with DWQ in arriving at effective strategies for recovering biological health in urban streams.

In addition, in a related issue, the League and its members have advocated for improvements to a buffer rule proposal that would increase stream buffer mitigation activities in urban areas. Improvements to the buffer rules would allow local governments to take more proactive steps toward protection of urban streams.


^ Back to Top

Workgroup Examines Phosphorus Content in Biosolids

A workgroup that includes state environmental agency staff, university researchers, agriculture interests, and local governments (including the League) has formed to examine the phosphorus content in biosolids.

Biosolids are the nutrient-rich organic materials resulting from the treatment of the residue generated during the domestic wastewater treatment process. After being treated to strict standards, biosolids are safely recycled and used as fertilizer when "land applied" -- or irrigation sprayed -- on agricultural fields.

The workgroup, spearheaded by the N.C. Division of Water Quality (DWQ) Land Application Unit, grew out of a concern left unaddressed during the Jordan Lake Rules process. Agency staff and some stakeholders worried that as a result of biosolids land application, certain fields in the Jordan watershed and other areas of the state contained too much phosphorus.

Phosphorus is a potential pollutant that can run off lands and into streams during rain events, contributing to nutrient over-enrichment that may harm aquatic life. It is also an element that may remain on fields for decades. In past decades, N.C. farmers may have applied excessive amounts of phosphorus as fertilizer, with some of that phosphorus remaining on the fields today.

The workgroup has limited its examination to a biosolids product meeting the standards for Class B biosolids in the N.C. biosolids land application rules.

Group's Objectives

Through a series of meetings beginning last fall, the workgroup has clarified its objectives:

  • Does science indicate that the phosphorus content of land-applied Class B biosolids should be considered when determining the rate/frequency of application?
  • If yes, what tools are needed to accurately determine the application rate?
  • How would the resulting tool work in the different soil regions of North Carolina?

While DWQ has stated that it does not expect the workgroup's examination to result in rulemaking, it does expect the workgroup will make a recommendation to DWQ leadership regarding its policy on the phosphorus content of Class B biosolids.

The two areas of the state with fields that may reach phosphorus saturation first are those near Durham/Chapel Hill and Charlotte. Wastewater representatives from all three metro areas are represented on this workgroup, which also includes N.C. State University soil scientists and representatives of the N.C. Department of Agriculture and the N.C. Farm Bureau.

Outcome of Discussions

To date, the group has listed areas in which further research is needed, including the development of mathematical co-efficients to better predict how much phosphorus actually runs off fields during rain events.

The group has also acknowledged that its recommendations will likely inform adjustments underway to the Phosphorus Loading Accounting Tool (PLAT), a series of calculations developed specifically for N.C. soils that predict the risk of phosphorus loss from soils. DWQ uses PLAT to develop land application restrictions in permits. Currently, PLAT cannot accurately predict phosphorus loss from biosolids. Some N.C. State University researchers involved in this workgroup aim to adapt the tool for the biosolids context.

DWQ staff that are members of the workgroup are also researching the ways other states address this issue.


^ Back to Top

Regulatory Briefs

At its May meeting, the EMC will discuss DWQ's proposed flexible buffer mitigation rules, which may ease limitations on urban buffer mitigation...Register here for the DWQ nutrient forum, May 29-30 at the RTP Sheraton Imperial Hotel...In response to 2011 legislation, DWR plans to publish its water efficiency BMP manual in June...DWQ has submitted the 2012 303(d) list to EPA for approval and has prepared a response to public comments...The EMC now expects to vote on the triennial review fiscal note in winter 2013...EPA will likely push back the release of its national post-construction stormwater rulemaking to spring 2013...The Public Water Supply Section is soliciting comments on its updated Drinking Water State Revolving Fund memo, which incorporates provisions of the 2008 drought legislation and 2011 water efficiency legislation...The Infrastructure Finance Section will accept comments on its Clean Water State Revolving Fund 2012 Intended Use Plan through April 27...On its website, DENR has launched an online permit tracking system, which provides searchable public access to 25 different types of permits, including NPDES wastewater and stormwater permits as well as collection system and capacity use permits.
^ Back to Top

NCLM and State Government Environmental Meetings & Events