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NCLM News & Political Report

From the perspective of the League Government Affairs staff, the days of an "off-season" in between legislative sessions -- if they ever existed at all -- simply do not happen anymore in this era of constant lawmaking. Legislative committees meet throughout the year to tee up bill proposals for the upcoming session. Legislators work with stakeholders (like the League) in between gavels to iron out differences on proposals. And candidates for the legislature make numerous campaign promises, many of which will show up as bills when the legislature reconvenes.

What does all this activity add up to for the League's staff? It means that we are hyper-vigilant to all statements made by current and future legislators, whether at a committee meeting, to a League member or ally, or in a hometown newspaper. We attend the many formal legislative committee meetings that occur outside of session (see the list of environment-related meetings in our calendar below). We talk daily with League members and other allied groups to learn what scuttlebutt they are hearing about upcoming legislative plans. And we read and share news reports from around the state that might clue us in to plans for future legislation by those running for office now.

The Scoop, Direct to Your Email Inbox

A large part of our job is to distill what we learn to help you prepare for what's coming:

  • EcoLINC. For example, this issue of EcoLINC provides a window into some of the environmental proposals we expect to see introduced next year, including water supply.
  • LINC'ed In. This fall, we started a new weekly email service called LINC'ed In, another play on the acronym for our grassroots program, League LINC. This short weekly email draws together our brief reports of what's still going on in Raleigh and across the state, even though the legislature is months away from convening. It is intended give readers a sense of the tenor of public conversation regarding the broad range of issues important to League members. Send us an email if you'd like to receive these emails in between legislative sessions.
  • News & Notes. If an issue is so important we think you need to learn about it immediately and then take action, we will send you a one-off "News & Notes" email. Folks on our broader LINC'ed In list receive these emails.

We appreciate those of you who make sure to let us know when something of note happens in your community. Our experience tells us that issues that may only seem local at first have a way of turning into statewide proposals. Thank you for what you do to make sure all of us are prepared for what's ahead.

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Water Supply Concerns Top Legislative Panel's Agenda

NOTE: This article originally appeared in the League's advocacy blog on October 12.

Legislative leaders on environmental issues prioritized water supply as a focal point at their meeting of the legislative Environmental Review Commission (ERC) last week. Duties of the ERC, a standing legislative commission, include oversight of all state environmental boards and programs as well as review of changes to federal environmental laws.

Importantly, the ERC may propose bill language on any topic related to the environment. Generally, such proposals stem from presentations received by the commission during its meetings in between legislative sessions.

On Thursday, the commission heard from several state agencies regarding water supply. Tom Reeder, Director of the Division of Water Resources (DWR), N.C. Department of Environment and Natural Resources, updated legislators on the broad array of water supply activities undertaken by DWR. He also made suggestions for increasing assured water supplies across the state. Vernon Cox, Environmental Programs Specialist, N.C. Department of Agriculture, reported on the results of the 2011 voluntary agriculture water use survey.

Prelude to Future Legislation

Information given to the commission by presenters was important to understanding the possible directions any future water supply legislation might take. For example, responding to past interest in assuring adequate water supplies for decades to come in North Carolina, Reeder outlined six methods to create new water supplies:

  1. Interconnection between systems
  2. Reallocation of storage in existing reservoirs (read a follow-up story on this method as it relates to Raleigh's quest for more supply in The News & Observer)
  3. Utilization of quarries that receive excess water from nearby rivers during high-flow periods
  4. Surface water intake
  5. Non-mainstem (offline) reservoir
  6. Mainstem reservoir

In the last legislative session, the League was heavily involved with proposals addressing many of the new supply choices Reeder identified, such as interconnections and reservoir development (page 7). Looking ahead, past bills that were unsuccessful -- such as mandatory interconnections between systems -- may be reintroduced, while legislators may choose to build further on past successes like reservoir development.

A comprehensive water supply bill may also address other aspects of managing water resources to achieve the goal of increased water supply. Possibilities raised in the context of discussing Reeder's presentation include:

  • Broadening the uses of reclaimed water
  • Encouraging leak detection audits
  • Requiring more efficient use of water
  • Considering the role of ecological flow
  • Enabling private investment in water infrastructure

A workgroup of League members on the Regulatory Action Committee will examine the issue from a municipal perspective and provide feedback to legislators in November. The League intends to play an active role in stakeholder discussion on this topic; please email Erin Wynia with your concerns and questions.

In addition, Rep. Mitch Gillespie (McDowell) stated his intent to hear presentations on the effort to develop ecological flow data at a future ERC meeting.

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Impaired Waters List Conversation Shifts to Legislature

Questions over the appropriate role of political appointees in developing and prioritizing the state's list of impaired waters -- previously contained to regulatory circles -- shifted last week to a legislative environmental oversight panel.

At a meeting of the legislative Environmental Review Commission (ERC) Thursday, legislators probed Steve Smith, chair of the regulatory N.C. Environmental Management Commission (EMC), about the process of assessing the health of the state's waters to determine impairment. Duties of the ERC, a standing legislative commission, include oversight of all state environmental boards, such as the EMC.

Questions about the state's 303(d) list, named after Section 303(d) of the federal Clean Water Act, come in the midst of two public comment periods related to development of the list. The federal law requires states to evaluate the health of their waters and “list” those exhibiting impairments. Impaired waters most often become subject to a “water pollution diet” for the affected watershed, usually in the form of a Total Maximum Daily Load (TMDL). Local governments, as the holders of wastewater and stormwater discharge permits, bear responsibility for reducing their discharges to waters under a TMDL – often a costly requirement.

Legislators Prefer EMC Oversight

In stating his preference for the EMC to become more involved with listing and prioritizing waters on the 303(d) list, Rep. Mitch Gillespie (McDowell) asked Smith why the EMC has not already assumed oversight of the list. Smith responded that while there is no known record of delegation of this duty to state staff, because the decisions are highly technical, the EMC is not capable of completing the task without assistance by state staff. Therefore, Smith said, the public comment period should assist the EMC in figuring out its role in the process.

Gillespie concluded that the ERC would investigate whether clarifying legislation was needed to ensure the EMC could oversee development of the list. The ERC may propose bill language on any topic related to the environment. Generally, such proposals stem from presentations received by the commission during its meetings in between legislative sessions, such as the one given by Smith last week.

Two Comment Periods

Legislators discussed the 303(d) list concerns against a backdrop of two current, related opportunities for public comment.

The first public comment period asks whether the appointed EMC members should oversee development of the list, and if so, to what extent. The comment period ends October 22 and comes after over a year of requests by the League and other stakeholders for the EMC to become more involved in these decisions of enormous regulatory consequence:

A second public comment period asks the public for input on the "use assessment methodology" used to evaluate the health of water bodies. State regulators use the methodology along with water quality data and standards to determine whether or not waters are impaired.

The League will submit written comments in response to both requests.

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League Comments Push for Electronic Water System Reporting

The League submitted comments last week in support of a federal effort to allow electronic distribution of mandatory annual water system reports. The so-called "CCR reports," required by the Consumer Confidence Rule (CCR) that is part of the federal Safe Drinking Water Act, list the regulated contaminants found in drinking water as well as health effects information related to violations of the drinking water standards.

NCLM Executive Director Ellis Hankins advocated for this change in a meeting with White House officials this summer about federal regulatory reform efforts.

Water systems serving more than 10,000 persons are required to mail or otherwise directly deliver these reports. Since the inception of the requirement in 1996, the U.S. Environmental Protection Agency (EPA) has interpreted the requirement to mean hard copy delivery of the report to each customer and other interested parties. However, as part of President Obama's regulatory reform initiative launched last year, EPA tagged this rule as one that would benefit from adaptation to modern communication methods.

Although not a rulemaking, EPA sought comment on its new proposed interpretation of the rule. In its comments, the League commended EPA for considering a wide range of electronic delivery methods for CCR reports, including:

  • Mailed notification that the CCR is available on a website. Under this method, the notification must include a direct URL to the CCR.
  • Emailed notification that the CCR is available on a website. Under this method, the notification must include a direct URL to the CCR.
  • Email with the CCR attached to the email.
  • Email with the CCR embedded as an image in the email. EPA expressed a preference for this method because it provided the report content directly with the communication.
  • Additional electronic delivery options that meet the requirement. EPA intended this catch-all category to accommodate future technologies, and noted that current social media techniques such as Twitter and Facebook did not meet the "directly deliver" requirement of this rule.

Systems may still distribute the reports by mailing a hard copy, and they very likely will need to continue doing so for customers that request a hard copy instead of electronic delivery. In fact, EPA encouraged systems considering a switch to electronic delivery of these reports to consider several delivery modes in combination: "For example, a [water system] may provide the CCR through an email to electronic bill-paying customers but include a mail notification with a direct URL to customers who receive paper bills or mail those customers a paper CCR."

Read EPA's short proposal here.

Read the League's comments here.

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N.C. Energy Board Selects Chair Amidst Controversy

Members of the newly-formed N.C. Mining & Energy Commission (MEC) handily elected Lee County Commissioner James Womack as the board's first chair September 28. The MEC has primary responsibility for writing the state's rules governing the practice of natural gas extraction, legalized earlier this year by the N.C. General Assembly.

The process of legalizing natural gas extraction has encountered intense opposition at every step, and Womack's selection as chair was no exception, following media reports that presented him as a controversial figure and described his views as "pro-drilling." These reports quoted him characterizing environmental concerns over the practice as "overblown" and "emotional." After his election as chair, Womack apologized to MEC members for unintentionally coloring the public's perceptions of the MEC's tasks.

Remaining Leadership, Work Plans Still Undetermined

Although it now has a leader in place, the commission still faces further organizational decisions before it undertakes its rulemaking responsibilities in earnest. The top of the MEC to-do list is to finish selecting the group's leadership. At the September meeting, the commission deadlocked over two candidates nominated for the position of vice-chair, legislative appointee George Howard and gubernatorial appointee Charlotte Mitchell. Because it could not resolve the tied vote, the board voted to defer selection of vice-chair to its next meeting, scheduled for November 2. [The final 2012 MEC meetings will take place December 18-19.]

To assist the commission with its remaining organizational tasks, at the September meeting, staff members of the N.C. Department of Environment and Natural Resources (DENR) offered commissioners a draft work plan and timeline for mandatory studies and rulemaking. State legislators have required the commission to complete rulemaking by October 1, 2014 -- just under two years. The aggressive timeline will likely mean eight full commission meetings a year plus additional committee work, public hearings, and negotiations with state budget analysts who must approve the fiscal note accompanying the rules.

Local Government Studies

In addition, legislators directed the commission to undertake several studies in conjunction with the League and other stakeholders. The studies, covering the topics of local government authority over the industry and appropriate funding to address impacts from the industry, are due to the legislature by October 1, 2013. The draft DENR timeline anticipates completion of the first study by May and the second study by October.

Chair Womack will make final decisions regarding the process for and makeup of these local government studies. If asked, the League members and staff will participate in both of these study groups, in addition to a larger group that will provide input on the regulations.

Media reports regarding selection of Womack as MEC Chair:

Past NCLM reports on the legalization of natural gas extraction in North Carolina:

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Regulatory Briefs

RSVP now for one of two DENR "open house" public meetings to receive feedback on permitting process improvements: October 30 in Wilmington, and November 1 in Winston-Salem...To cap this spring's NC Forum on Nutrient Over-Enrichment, DWQ has mailed each participant all of the forum presentations and follow-up materials...Development of a river basin model for the Yadkin Pee-Dee basin has moved up the state's priority list to begin in 2013...The Nutrient Scientific Advisory Board has contracted for a new model of the Jordan Lake watershed to specifically allocate nutrient loads among land uses, and to better understand the nutrient contributions of septic systems in the watershed...State regulators have developed a Category 4(b) plan resource webpage for communities wishing to address impaired waters without a TMDL...Thanks to changes in the second phase roll-out of DENR's online permit tracking system, the public now has more nimble access to every environmental permit issued by DENR...The U.S. Supreme Court will hear oral arguments in a significant water rights case regarding the Los Angeles MS4 stormwater system December 4, with a decision expected next year...State water resources officials have finalized a comprehensive water efficiency and conservation BMP manual and planned training sessions in conjunction with regional councils of government across the state...National development industry groups have nearly settled a lawsuit with EPA that would remove a proposed numeric turbidity limit for stormwater runoff during construction projects...DWQ has presented a draft lake model for comment, part of its continuing preparation for nutrient regulations on High Rock Lake...The public may comment until December 2 on updates to the state's stormwater BMP manual airport chapter, which were made in response to legislation and could affect local government oversight of stormwater controls at airport facilities...The state has reported that statewide water system permit violations have fallen from over 4,000 in 1999 to less than 1,000...EPA has developed a new green infrastructure stormwater calculator, which should assist in determining how these devices may reduce runoff during site development...The state has extended a public comment period on the stormwater proprietary systems chapter of its BMP manual until October 31.
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NCLM and State Government Environmental Meetings & Events