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NCLM News & Political Report

While news of legislative and regulatory actions traditionally slows in August -- and this month has been no exception -- both the state legislature and Congress had newsworthy actions before all eyes turned toward the fall elections. At the same time, the League membership and Government Affairs team have numerous initiatives this fall to prepare for expected legislative and regulatory debates.

Tying Up Loose N.C. Legislative Ends

The 2012 legislative Short Session closed out officially early this month with Governor Bev Perdue making her final decisions on bills passed at the end of session. She held the major omnibus environmental bills until the last possible moment, but did sign them into law rather than letting them become law without her signature. Therefore, provisions such as a delay of the new development requirements of the Jordan Lake Rules and more narrow permitting of municipal yard waste compost operations have become law.

One legislative battle -- over control of the Asheville water system -- simmers locally and could potentially turn into a statewide issue when the legislature reconvenes in January. Turning up the heat, the Asheville City Council has voted to place a referendum on the fall election ballot asking voters whether or not they want the Asheville water system transferred to Buncombe MSD, the regional wastewater system serving Asheville. Meanwhile, Buncombe MSD has awarded a $200,000 contract to study the financial implications of a merger of the two systems. The study will not, however, include any financial estimates of the value of Asheville's water system.

Congress Acts on Water/Wastewater/Stormwater, Leaves Town 

Congress left Washington in early August after taking votes affecting cities and towns' water, wastewater, and stormwater programs. The U.S. House served as ground zero for this action, receiving testimony and taking votes on:

  • Integrated wastewater & stormwater permitting. In a hearing to vet viewpoints on implementation of EPA's new "Integrated Municipal Stormwater and Wastewater Planning Approach Framework," Salt Lake City Mayor Ralph Becker testified on behalf of the National League of Cities before the House Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment.

    In that hearing, Mayor Becker urged members of Congress to support EPA in implementing this tool in a way that would give cities more flexibility in meeting permit requirements, rather than through the use of judicial consent decrees. Mayor Becker also reiterated the obligation of Congress to assist cities with funding water, wastewater, and stormwater infrastructure. Read a report on Mayor Becker's testimony.
  • Farm bill. The U.S. Farm Bill, re-negotiated every five years, is the largest farm policy legislation in the country. While the bulk of the bill's cost goes to the SNAP (food stamps) program, it also contains countless agricultural policy and funding measures, many of which assist agriculture in reducing water impairment.

    In June, the Senate passed a $970 billion Farm Bill package (read the League's take on the debate in this June 2012 EcoLINC article). While the House Agriculture Committee approved a slightly smaller version of the Senate proposal, the full House failed to pass it before adjourning until September, when the current Farm Bill expires.

    Due to the drought being experienced by most of the nation's farmers, this bill seemed to be the logical vehicle for relief payments to farmers. Members of both political parties point the finger at each other for the bill's failure to pass before the August recess (read "Enduring Drought, Farmers Draw the Line at Congress," New York Times). The urgency of the drought may force a vote when Congress reconvenes in September.

League's Fall Initiatives

The League membership and Government Affairs team have begun numerous activities aimed at preparing for future state and federal policy debates:

  • Policy goal positions. The League's four policy committees are now meeting to debate and propose policy goal ideas for 2013-2014. The ideas come from committee members and the general League membership, which may submit goal ideas until August 31. Individual League members or entire city councils may submit goals. Eventually, the entire membership will vote on a goal package that will include both legislative and regulatory goals.
  • Workgroups and forums. The League membership will gather for workgroups and forums on several different policy issues throughout the fall, including post-annexation, transportation, tax reform, natural gas extraction, and streamlined local permitting.
  • Legislative & regulatory visits. League members will join Government Affairs staff members in visits to candidates for legislative office in their home districts throughout the election season. They will also meet with members of state-appointed boards such as the N.C. Environmental Management Commission and the N.C. Mining & Energy Commission.
  • Business leaders coalition. League members and staff will reach out to local business leaders to form a coalition that will spread the word about the importance of healthy cities to local economies and job creation.

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DWQ Next Steps on Nutrients: Limited to Plans

An N.C. water quality regulator has clarified planned future actions of the N.C. Division of Water Quality (DWQ) to control the flow of nutrients into the state's waters. In North Carolina and across the country, pollution from nitrogen and phosphorus presents the most urgent yet difficult water quality issue to address.

In past updates on nutrients -- in both May and July -- DWQ Planning Section Chief Alan Clark had forecast his section's future nutrient proposals. In clarifying the intent of those remarks, Clark said that the main action DWQ intends to take now is to revise its Nutrient Criteria Implementation Plan (NCIP), part of an agreement with the U.S. Environmental Protection Agency (EPA). The revisions to the NCIP will include commitments to propose two challenging rule packages:

  • Numeric nutrient criteria: Such a rule could establish in-stream nitrogen and phosphorus standards -- the so-called "numeric nutrient criteria" that have caused extreme controversy in Florida and elsewhere over the past two years.
  • A proposal to prevent nutrient impairment of waterbodies: Regulation prior to impairment is the same concept underlying the failed "threshold rules" proposed in 2010. Still, Clark said in his past remarks that the new proposal would not take the same form as his section's previous attempt at statewide nutrient regulation.

Clark said any commitments DWQ reached with EPA in this document would stem from information presented at the N.C. nutrient forum held in May; presentations and written answers to questions are expected to be available sometime this month. In addition, Clark said he expected to involve the N.C. Environmental Management Commission (EMC), the state's rulemaking body overseeing development of any proposals, with the NCIP revisions. An initial presentation to the EMC could come as early as November, he said.

Past Documents Foretold Broad Nutrient Strategies

The NCIP contains the Division's latest thinking on how it will address nutrient impairment of the state's waters. Past NCIP iterations laid the foundation for nutrient plans such as the Falls Lake Rules and the threshold rules, as well as the associated water quality standard-setting taking place every three years pursuant to the Triennial Review.

Originally signed June 1, 2004, the NCIP contained:

  • Timelines for development of nutrient strategies;
  • An overview of the state's current nutrient strategies; and
  • An inventory of data on nutrient levels in lakes and drinking water reservoirs across the state.

The state and EPA revised those timelines as budgetary constraints and legislative delays made adherence to the original deadlines impractical. [To review all materials related to North Carolina's NCIP, visit this page and scroll to the bottom section titled "What is North Carolina's Nutrient Criteria Implementation Plan?"]

Meanwhile, over the past dozen years, EPA continued to stress development of numeric nutrient criteria as a critical water quality goal. The federal agency first asserted this goal in a 2001 Federal Register notice, signaling its expectation that all states would develop strategies to prevent the flow of nutrients to the nation's waters. At that point, North Carolina already had a history of such strategies, beginning with the Chowan river basin, then moving to the Neuse and Tar-Pamlico basins and eventually Jordan and Falls lakes. Even now, a proposal for High Rock Lake (information item III.1 for presentation) is currently under development.

EPA Compels Adherence to Plan

Despite this activity, in agreeing to the state's NCIP, EPA threatened to take over North Carolina's program if the state didn't follow the steps laid out in the NCIP. In the 2004 letter documenting its agreement with the state's NCIP, EPA wrote, "If the State has not met the milestones as scheduled in this plan, EPA will evaluate whether a federal promulgation would be appropriate." Whether or not EPA would seek to implement numeric nutrient criteria in other states following the intense debate in Florida over the same issue these last few years is debatable.

Still, EPA could wield a stick over the state by choosing to withhold general funding for DWQ if the state does not adhere to the agreements contained in a revised NCIP. This funding comes from "Section 106" grants made from EPA to the state for its water quality standard-setting and planning activities. Having a current NCIP in place is a key to the state receiving this source of funds.


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EPA Moves N.C. Stormwater Programs Forward

The U.S. Environmental Protection Agency (EPA) took three actions this month to further expand the reach of the state’s stormwater control programs:

  • Commenting on proposed Phase I program permits, which will lead to permit renewals for those affected communities
  • Circulating a draft proposal for further Phase II program designations, a result of the 2010 census
  • Releasing the results of a nationwide survey of the practices employed by Phase I and Phase II municipal stormwater programs, which could serve as a pretext for an anticipated rulemaking next year

Phase I Permit Renewals

As a preliminary step to renewing any municipal separate storm sewer system (MS4) permits, the N.C. Division of Water Quality (DWQ) solicits comments on its draft permits from EPA. Earlier this month, EPA sent back its comments on North Carolina's proposed Phase I permit renewals, which DWQ will evaluate and possibly incorporate into the permits.

Cities, towns, and counties across the country fall under federal stormwater rules that require a permit and programs to control stormwater under either the Phase I or Phase II programs. Communities subject to either a Phase I or Phase II stormwater permit must operate the required elements of a stormwater program, such as post-construction, public education, and illicit discharge detection and elimination.

Operating permitted programs is not new for North Carolina’s six Phase I communities: Charlotte, Durham, Fayetteville, Greensboro, Raleigh, and Winston-Salem. These municipalities have now received several renewals since their initial permits, unlike North Carolina's Phase II communities, which received their first permit renewal last year. Therefore, while the proposed Phase I permit terms will look different from the previous iteration, they should not entail whole-scale programmatic changes.

As for next steps, DWQ plans to notice the permits for a 30-day public comment period beginning September 1. In the notice, DWQ may specifically seek comments on whether the recent Jordan Lake and compost legislation should change the permits in any way. Once DWQ has incorporated those comments, it will issue the permits.

Phase II Draft Designations

Some N.C. local governments will become subject to the requirements of the Phase II program as a result of EPA action, now just in draft form. This EPA action occurs after each U.S. census, when EPA designates cities and counties as Phase II stormwater communities based on their inclusion in census-defined “urban areas.”

According to EPA, an urbanized area is a densely settled core of census tracts and/or census blocks that have a population of at least 50,000, along with adjacent territory containing non-residential urban land uses as well as territory with low population density included to link outlying densely settled territory with the densely settled core. An urbanized area is the minimum land area to receive coverage under the Phase II regulations. In North Carolina, if any portion of a local government's jurisdiction is classified as an urbanized area, the entire jurisdiction becomes subject to the Phase II rules and permitting procedures.

Because North Carolina has grown so rapidly over the past decade, EPA’s draft list of potential Phase II designations is large. However, once the list is finalized, communities proposed for designation may request a waiver from the program. A community may seek a waiver if either of two circumstances exist:

  • (1) The jurisdiction served by the system is less than 1,000 people within the urbanized area; (2) the system is not contributing substantially to the pollutant loadings of a physically interconnected regulated MS4; AND (3) if the MS4 discharges any pollutants identified as a cause of impairment of any water body to which it discharges, stormwater controls are not needed based on calculations made pursuant to a “total maximum daily load” (TMDL).
    OR
  • (1) The jurisdiction served by the system is less than 10,000 people; (2) an evaluation of all waters of the U.S. that receive a discharge from the system shows that stormwater controls are not needed based on calculations made pursuant to a TMDL; AND (3) it is determined that future discharges from the MS4 do not have the potential to result in exceedances of water quality standards.

Based on past requested waivers, DWQ anticipates roughly one dozen newly-permitted Phase II stormwater communities as a result of this EPA designation exercise. Communities under consideration will be notified by both EPA and DWQ, and the League will work with these agencies on those communications and any future trainings and workshops the agencies may develop.

Stormwater Survey Results

As a precursor to its proposed national stormwater rulemaking, now expected to be proposed in June 2013, EPA conducted a nationwide survey of MS4 practices. The results of that survey reveal discernible trends in how MS4s regulate stormwater controls after construction. EPA will likely use the results of this survey to require more stringent components to Phase I and Phase II stormwater programs.

In 2010, EPA received the survey from over 850 MS4s nationwide. This survey represented the first time EPA had collected comprehensive data on the implementation of stormwater programs from regulated MS4s. A component of the survey that assessed the costs of running a permitted program has not yet been evaluated.

EPA has indicated that its upcoming rulemaking would focus on the so-called “post-construction” element of stormwater programs. In relation to the post-construction portion of the programs, in its survey EPA found:

  • 18 states and the District of Columbia have numeric retention standards for stormwater control devices, which require a certain volume of rainfall to be retained on-site. EPA favors these numeric standards over less-specific standards.
  • Half of respondents allow for developers to comply with the rule without building stormwater control devices on development sites, such as paying into mitigation banks or other in-lieu fees.
  • While most MS4s have the authority to enter private property to inspect whether stormwater control devices are functioning properly, most lack the authority to maintain those devices themselves. In that case, the private property owner or homeowner’s association has the responsibility to maintain installed stormwater devices.
  • Only eighteen percent of Phase II communities and 41 percent of Phase I communities operate some form of retrofits of existing properties, an expensive component to any stormwater program.

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Mining & Energy Commission To Begin Work

UPDATE

August 22, 2012

The N.C. Mining & Energy Commission will hold its first organizational meeting on September 6, from 1:00 pm -- 5:00 pm in the Archdale Building Ground Floor Hearing Room, 512 North Salisbury Street, Raleigh. Agenda topics include compliance with open meetings and public records law, state ethics requirements, and the Commission's duties under the state law creating the Commission.

Original article

With all of its members appointed, the newly-created N.C. Mining & Energy Commission (M&E Commission) is set to begin its work in September. This commission will write the rules governing the now-legal practice of natural gas extraction. As with the legislative fight that preceded its creation, however, the beginning of the commission's work is not without some controversy.

Ethics Questions

With an expectation that the M&E Commission will meet for the first time as early as the first week of September, government watchdog and environmental groups have questioned whether the commission can begin its work without official designation as a "covered" board subject to state ethics laws. State law requires the State Ethics Commission to determine whether each state board meets the requirements for designation.

For its part, the State Ethics Commission gave a preliminary indication that it will designate the M&E Commission as a covered board. Such designation would mean those serving on the board must submit extensive financial disclosures in a statement of economic interest. Designation also would mean commission members become subject to other state laws governing voting on matters in which the commissioner may have a conflict of interest. Already, government watchdog and environmental groups publicly alleged that some appointees to the M&E Commission have conflicts of interest (read "Environment Advocates: Fracking Panel has Drill Bias" from WRAL).

The State Ethics Commission next meets in November, at which time it will likely decide to name the M&E Commission a covered board. Then, any board member may contest the designation during a 45-day period following that decision. Because all boards engaged in rulemaking must be covered under state law, and the M&E Commission will engage in rulemaking, challenges to the determination are not expected.

In the meantime, state law requires the M&E Commission to meet twice quarterly beginning this month. The N.C. Department of Environment and Natural Resources will convene the first meeting, which is expected to be organizational in nature. The M&E Commission may elect a chair from among its members at this meeting.

Read more about the work of the M&E Commission and the role the League will play in issues under its consideration in this July 2012 EcoLINC article.

Governor's Appointees

While the M&E Commission had a quorum to conduct business with only the legislative appointments made in July, it now has a full membership with Governor Bev Perdue's recent appointments. Earlier this month, the Governor appointed the four remaining members of the M&E Commission:

  • Jane Lewis-Raymond, Senior Vice President & General Counsel, Piedmont Natural Gas. Commissioner Lewis-Raymond is a former Vice President--Regulatory Affairs for the American Gas Association.
  • Charlotte Mitchell, Partner, Styers, Kemerait, & Mitchell. Commissioner Mitchell is an attorney whose practice specializes in utilities, environmental, land use/zoning, and administrative law.
  • Amy Pickle, Senior Attorney for State Policy, Duke University Nicholas Institute for Environmental Policy Solutions. Commissioner Pickle also serves the N.C. Environmental Management Commission and served in the past as an attorney with the Southern Environmental Law Center in Chapel Hill.
  • Marva Price, Associate Professor, Duke University School of Nursing. Commissioner Price also serves on the N.C. Public Health Commission and specializes in environmental health issues.

The Governor's appointees joined the remaining M&E Commission members who were appointed by the legislature in July. Of the 15-member commission, the Governor, Senate President Pro Tempore, and Speaker of the House each made four appointments. The remaining three members of the commission serve in an ex-officio (non-voting) capacity. One seat is designated for an elected municipal official from the Sanford Sub-basin; the Speaker appointed Sanford Council Member Charles Taylor to this seat.

Read about the controversy created with other appointments made so far to this commission in:


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Regulatory Briefs

North Carolina's 2012 303(d) list received EPA approval on August 10...For its latest watershed-scale nutrient management strategy, DWQ now expects the first of two models for High Rock Lake, the watershed model, to be presented to the EMC in November...DWR expects to complete the first draft of its combined Cape Fear-Neuse river basin model by the end of this month, an effort that is part of the Jordan Lake Allocation process...DWQ has extended the comment period on whether to offer stormwater credit for permeable pavement BMPs until September 1...To comply with a 2011 state law, DWR has produced a draft water efficiency BMP manual (read here) and will accept comments on the document until September 28...A new EPA water quality standard for selenium, expected for public release in spring 2013, will use a new method that relies on a combination of predicting the levels of selenium likely to be ingested by fish plus a translator for permitting purposes... EPA has pulled the plug on its planned rulemaking that would require CAFOs to submit data on their operations.
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NCLM and State Government Environmental Meetings & Events