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NCLM News & Political Report

This week marks a huge milestone for the League's regulatory advocacy program, as Sarah Collins joins our Government Affairs team as our Regulatory Affairs Associate. Sarah will work with Legislative & Regulatory Issues Manager Erin Wynia as a lobbyist on municipal regulatory issues such as water quality and investor-owned electrical utility service. In implementing the day-to-day aspects of the program, Sarah will have primary responsibility for regulatory issue management, relationships with League members and state regulators, written regulatory communications, the League's Regulatory Action Committee, and League affiliate organizations such as the Storm Water Association of North Carolina. With this hire, the League has committed additional resources to its regulatory advocacy program, ensuring active engagement on all of the membership's regulatory priorities. Read more about Sarah's background in "Collins Hire to Bolster NCLM Regulatory Advocacy," below.

Sarah will provide immediate impact for the League members, who face numerous legislatively-driven regulatory actions. In this month's edition of EcoLINC, you can read about four of those efforts:

  • Jordan Lake Rules
  • Stormwater runoff from gravel surfaces
  • Oil & gas extraction
  • Review of rules

In addition to the legislatively-driven regulatory actions listed above, the League members will also face pressure as a result of legislative studies examining facets of municipal environmental services such as drinking water, wastewater, and stormwater. This issue of EcoLINC reports on recent legislative actions on the following topics:

  • Stormwater runoff
  • Local government environmental ordinance-making authority
  • Statutory models for the provision of water and wastewater services
  • Development plan technical review and approvals

The legislature won't stop with these legislative studies, though. Look for other study committees interested in how local governments provide these services to begin meeting next month. The calendar listings at the end of this issue include meeting details for committees examining how public enterprises use funds, wetland and stream mitigation, and how local governments exercise powers such as eminent domain over private property owners, among others. As always, the League will advocate for its members' interests on all of these issues and report significant developments in future editions of EcoLINC.

In addition to having Sarah join our team, two other members of the League's Governmental Affairs team have assumed new roles at the League. Going forward, Chris Nida will serve as the League's Director of Research and Policy Analysis, while Jennifer Webb will transition to a new role as the League's Executive Liaison. Read more about Chris and Jennifer's backgrounds and previous work for the League members in this announcement. We are genuinely excited for all of our co-workers to take on these new opportunities to serve N.C. cities and towns.

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Fourth Set of Nutrient Plan Comments Press for More Resources

In the fourth set of comments the League submitted on the state's Nutrient Criteria Development Plan (NCDP), the League recommended that the N.C. Department of Environment and Natural Resources (DENR) dedicate more resources to what was expected to be an intense effort to address nutrient impairment in the state's water bodies. The NCDP, a roadmap for state regulators to use when developing nutrient management strategies such as the Jordan Lake Rules or Neuse Rules, was due to the U.S. Environmental Protection Agency (EPA) at the end of this month.

The latest draft of this plan included many features suggested by the League in previous comments, such as an emphasis on site-specific strategies rather than a one-size-fits-all solution. The plan also indicated active stakeholder involvement in the development of future nutrient management strategies, another feature previously prioritized by the League, and it addressed prior suggestions by cities to ensure flexibility in future strategies and an examination of the balance between science-based and cost-effective regulation. Finally, the plan included a commitment to consider implementation measures when formulating any future strategies, another item included in previous League comments.

However, with this latest plan, the League pressed DENR to commit more cross-departmental staff time and funding to support tasks listed in the plan, especially for a proposed Science Advisory Council. In addition, the League requested a stronger statement in the plan to affirm that existing nutrient management strategies would not be substantially revised. League members regulated by existing nutrient management strategies -- which cover over one-third of the state's land area -- have committed past and future financial resources to comply with these strategies, relying on the regulations remaining substantially the same in the future.

Plan Hits Cities' Highest Regulatory Priority

The League members selected the issue of nutrient management as their highest regulatory priority because municipalities assumed a primary responsibility for implementing the requirements of the federal Clean Water Act. This federal law required states to develop water body clean-up plans for impaired waters. In turn, with the clean-up plans, states required 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. 

The N.C. Division of Water Resources (DWR) began developing the NCDP in late 2012, and since then, the Division solicited public comment four times. The NCDP was required as part of an agreement between DWR and EPA that outlined a work plan for regulators to use in addressing nutrient impairments across the state. Similar work plans, negotiated for all states receiving EPA funding, contained a description of an agency's tasks, timelines, and milestones for development of numeric nutrient criteria.

This version of the NCDP listed three watersheds for which DWR would develop nutrient management strategies: High Rock Lake, the Albemarle Sound, and the middle Cape Fear River. Municipal stakeholders and associations in both the High Rock Lake and middle Cape Fear watersheds submitted comments on this version of the NCDP, urging DWR to continue active stakeholder involvement in the development of nutrient management strategies for those water bodies, among other points. These as-yet-unwritten clean-up plans could potentially contain different types of provisions than the state's previous nutrient management strategies, pending the outcome of a technology test and legislative study of the Jordan Lake nutrient strategy. According to leading state water quality regulators, any changes to state law that resulted from the legislature's re-examination of the Jordan Lake strategy would transfer to future strategies developed by the EMC.

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

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Legislators Question Successes, Shortcomings of Jordan Lake Rules

The legislature’s Jordan Lake Rules study committee began its interim study of the Rules last month, questioning the state's chief water quality regulator about perceived successes and shortcomings with implementation of the Rules. The study, authorized in the omnibus "Legislative Research Commission" group of interim studies, came in conjunction with legislation last session that delayed portions of the Rules. The Jordan Lake Rules were a comprehensive nutrient management strategy designed to address water quality impairments in Jordan Lake, a municipal drinking water supply and recreational lake that served the Triangle. The Rules included nutrient reduction targets for municipal wastewater and stormwater discharges that placed large compliance costs on affected upstream communities.

After hearing an hour-long presentation from N.C. Division of Water Resources (DWR) Director Tom Reeder, several committee members, including former Greensboro council member Sen. Trudy Wade, asked about nutrient reductions already realized under the strategy due to municipal wastewater treatment plant upgrades. At the same time, though, Wade and other legislators expressed frustration that the state did not know exactly which entities were implementing various parts of the Rules. Further, committee members remained perplexed that the state had not shown them evidence of water quality improvement in the lake, despite implementation of the Rules beginning over four years ago.

The study committee, which intended to meet three more times before the legislature reconvenes in May (including a meeting tomorrow), will likely recommend changes to the Rules that could set a precedent for future nutrient-based water quality regulations across the state. Any recommendations made by this committee would be eligible for introduction as legislation in the upcoming legislative Short Session.

Are Wastewater Treatment Discharges the Culprit?

At last month's meeting, Reeder reviewed the history of the Rules, including previous legislative efforts to approve and then modify the Rules. He emphasized to legislators that doing nothing to clean up the lake was not an option for the state. He reminded the committee of the state’s federal Clean Water Act obligation to address impairments in the lake, and added that if water quality in the lake worsened, drinking water treatment costs would continue to rise.

Questions posed to Reeder by legislators indicated that they wanted to see results from investments already made by affected parties responsible for cleaning up the lake, including cities. Further, the questions revealed that legislators had an interest in better understanding the sources of nutrient pollution flowing into the lake. Pertinently, Rep. Tim Moore, who sponsored a bill last session that forced the City of Durham to provide water and sewer service to a development in the Jordan watershed, stated that during discussions of that bill last session, he had heard that most of the pollution in Jordan Lake came from upstream wastewater treatment plants. He then asked Reeder if the Rules unnecessarily targeted stormwater runoff from development, when regulations would be more appropriately placed on the wastewater dischargers. Reeder replied that the models completed in advance of development of the Rules sought to proportionately assign responsibility for clean-up among the various contributors of pollutants.

As a result of this line of questioning, both Sens. Neal Hunt and Floyd McKissick asked Reeder to provide the committee a list of which affected communities had implemented which portions of the Rules. Future meetings of this study committee will likely examine efforts made to date by local governments to comply with the Rules, including reductions in both wastewater discharges as well as stormwater discharges.

For more on this initial committee meeting, including an interview with former Burlington mayor and city council member Rep. Steve Ross, read this WUNC report.

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Cities Support Effort to Clarify Stormwater Runoff Legislation

The League submitted comments earlier this month supporting a proposed temporary rule that clarified a recent stormwater runoff law. The law, part of The Regulatory Reform Act of 2013, excluded gravel from the state's definition of "built-upon area."

This exclusion upended long-standing practices in state and local stormwater programs, which treated non-paved surfaces such as roads, parking lots, and driveways, as impervious. Functionally, these surfaces acted the same as other built-upon areas such as buildings, and they did not typically allow water to infiltrate into the underlying soil. Due to the lack of clarity in the 2013 law, the N.C. Environmental Management Commission (EMC) voted to propose a technical definition of "gravel" (read further background on that proposal, including the text of the proposed rule as well as an account of the EMC vote in this January 2014 EcoLINC article). 

NCLM Comments

Along with its affiliate organization the Storm Water Association of North Carolina (SWANC comments here), the League supported the EMC's temporary rulemaking proposal because it allowed local stormwater programs to remain in compliance with their programs' regulatory mandates. For the purposes of stormwater management, program managers must ensure that appropriate controls are placed on development sites to control runoff from the various surfaces on the site. Therefore, stormwater program managers as well as site designers must understand exactly how to calculate the amount of runoff, a determination made murky by the new state law. The proposed temporary rule restored certainty to these calculations, the League's comments stated, offering uniformity across the state's many local jurisdictions.

In addition to its support of the text of the temporary rule, the League also offered suggestions for an expected permanent rulemaking 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

And in its comments, the League's affiliate organization SWANC, a membership association dedicated to fostering professional stormwater management in North Carolina, encouraged the EMC to also account for the use to which a particular non-paved surface would be put.

Future Regulatory & Legislative Actions

The EMC will likely initiate a permanent rulemaking later this year and will take into account any future legislative actions on the topic. Over the past few months, a legislative study committee has further studied the effects of stormwater runoff from non-paved surfaces. League members addressed this committee in December, and DEMLR submitted to legislators this paper regarding considerations about whether non-paved surfaces allowed water to infiltrate. Recommendations from this study committee were expected at the March meeting of the legislative Environmental Review Commission. In previous public meetings, some ERC members showed interest in directing DEMLR to open up state rules and guidelines in order to offer "credit" for the varying degrees of infiltration for non-paved surfaces.

Along those lines, the legislative recommendations will likely include a provision directing N.C. State University to study the infiltration rates of various non-paved surfaces. The University proposed the study in December, estimating that it could conduct the study over a nine-month period for $195,000. The study's deliverables, as outlined in the proposal, would include:

  • A report showing how well rainfall infiltrates aggregate surfaces with respect to depth, type of aggregate, and compaction of the aggregate surface
  • Recommendations on how to credit various aggregate surfaces based on infiltration rates
  • Fact sheet of results of the study, published by the N.C. Cooperative Extension

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League, Local Officials Brief Legislators on Environment Ordinances

League members yesterday gave a legislative study committee numerous reasons to retain their authority to enact local environment ordinances, while the League told a legislative environmental review panel in a presentation last month that most municipal environment ordinances existed to comply with state and federal requirements. Presenting to the Environmental Review Commission (ERC), an oversight committee that met in between sessions to study environment issues and recommend legislation for the upcoming Short Session, as well as one of its study committees, the League members responded to legislators' requests to define when and how they implement environmental ordinances.

The requests grew out of last session's omnibus regulatory reform bill, which tasked the ERC with determining the circumstances under which local governments may pass environmental ordinances "more stringent than" corresponding state or federal laws. Development interests proposed the study and previous iterations of the idea as a way to create more regulatory uniformity across jurisdictions and to crack down on what was viewed as excessive local environmental ordinances.

Cities Give Multiple Reasons for Local Control

In both the public hearing and last month's presentation, the League members supported retaining their ability to tailor these mandates to their local circumstances. Further, they pointed out that one-size-fits-all environmental regulations ignored the unique environmental characteristics within individual localities, such as amount of rainfall, topography, degree of slope, underlying soil types, and presence of water features.

Yesterday's public hearing featured comments from League members that represented Durham, Lenoir, Pittsboro, Raleigh, and Wilson. In addition, representatives from League affiliate organization the Storm Water Association of North Carolina, as well as the N.C. Rural Water Association and the N.C. Association of Floodplain Managers, presented similar comments as the League members. Several cities chose to explain instances in which they implemented local ordinances that exceeded state or federal minimums, while others pointed out practical difficulties that would result if the legislature forced all localities not to exceed state or federal minimum regulations.

In its presentation, the League explained that most environmental ordinances passed by local officials came (1) in response to state and federal regulatory mandates; (2) to protect local water, wastewater, and stormwater system assets; (3) to run state-delegated environment programs; or (4) to promote local economic development. For example, in the area of water supply, local drought planning and water shortage ordinances existed to comply with state regulations, while cross-connection ordinances existed to protect drinking water lines from contamination. In another example, a local government's sedimentation and erosion control ordinance could exist to comply with federal stormwater requirements, to run a state-delegated program, or to ensure that a natural tourism-generating feature in that jurisdiction such as a lake did not fill up with sediment.

In addition, the League stressed to legislators that in most cases, a state or federal law mandated a specific outcome for a local government to reach, while it left the specific ways to reach that outcome as local decisions. This feature of state and federal environmental management ensured that environmental regulatory programs were responsive to local circumstances.

Media coverage of last month's meeting focused on the two core issues that legislators faced in response to the study's charge. First, the study committee needed to determine what constituted an environmental ordinance. Second, the committee needed to develop the parameters for what was meant to have an ordinance "more stringent than" a corresponding state or federal law. Learn more in "What is an environmental ordinance?" (Coastal Review Online) and in this UNC-TV segment.

Critics Cite Other Ordinances as Problems

Critics of local government environmental ordinances also presented to the ERC in January. In those presentations, they listed the types of ordinances that they found objectionable.

The N.C. Retail Merchants Association focused on ordinances it said were passed as environment-friendly measures but instead had the primary effect of restricting commerce, such as:

  • Drive-through fees and bans
  • Plastic bag bans
  • Fees to recover the costs of shopping cart removal from streams
  • Garbage disposal bans
  • Leaf blower bans
  • Requirements for large employers to report vehicle miles traveled to work by their employees

Meanwhile, the N.C. Homebuilders Association stated that when it proposed this concept to legislators, it really had building code requirements in mind. However, the group told legislators that other local environment ordinances caused its members problems, including local stream buffers that were wider than state minimums and local tree ordinances. The group then urged lawmakers to recommend:

  • A review of all environment ordinances by the state agency that regulated that field, prior to the ordinances becoming effective
  • An immediate repeal of all existing local environment ordinances, subject to re-adoption by local city councils along with review by the state agency that regulated that field
  • An immediate repeal of all existing state rules that explicitly allowed local governments to enact more stringent ordinances than state minimums

Legislative Recommendations

The study committee examining this issue will likely make its recommendations to the ERC next month. If accepted by the ERC, those recommendations would become eligible for introduction as a bill in the upcoming Short Session that begins May 14. The recommendations could address any of the points discussed above, such as which types of local environment ordinances could not be "more stringent than" a corresponding state or federal law.

The recommendations could also address a de facto moratorium on the enactment of local environment ordinances now in place. The moratorium was part of the law that authorized this study. It stated that a local government may not pass an environment ordinance unless 100% of the governing body present and voting approved the ordinance. Study co-chair Rep. Chuck McGrady indicated in this UNC-TV interview that legislators would likely examine whether the moratorium should remain in effect beyond its October 1 sunset date. At yesterday's public hearing, League members presented unintended consequences from the moratorium with which they have had to deal since it became effective last summer, with both Durham and Lenoir detailing their efforts to pass hunting ordinances after the law became effective.

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Water/Wastewater Study Group Closes in on Recommendations

After holding three meetings in as many months, a legislative study committee examining the state's statutory models for water and wastewater services closed in on its recommendations two weeks ago.

The study committee, created in last session's omnibus regulatory reform bill, was originally conceived of by Rep. Tim Moffitt, the primary driver behind the law that forcibly transferred Asheville's water system to a regional wastewater system. The study committee may make recommendations to the legislative Environmental Review Commission (ERC), an interim committee that may draft legislation for the 2014 Short Session that begins May 14.

Ideas Discussed Track NCLM Suggestions

Specifically, at their last meeting, committee members focused on ways to provide financial support to failing systems. Study committee chair Rep. Mike Hager noted that cities and towns generally financed and ran their systems well, and stated that he supported targeted funds to assist struggling systems, especially those that lacked the ability to improve through a voluntary merger with a nearby well-performing system. In a similar vein, another study committee member, Rep. Rick Catlin, noted that without state dollars to assist systems in need, a region's economic development potential was limited to the ability of a water/wastewater system's ratepayers to finance the system. The League presented similar ideas to the study committee at its January meeting.

Hager also brought up another concept advanced by the League in its previous interactions with the study committee: trimming requirements for inter-basin transfer (IBT) certificates for water transfers between any of the state's 37 water sub-basins. Dubbed "the most restrictive inter-basin transfer law in the country" by a previous study committee presenter, UNC School of Government Professor of Public Law and Government Richard Whisnant, the state's IBT statute placed costly restrictions on water transfers. These restrictions limited any financial incentive for neighboring systems to consolidate and take advantage of the economies of scale offered by regional systems. One of the main legislative champions of those restrictions, study committee member Sen. Fletcher Hartsell, said that while he did not "wish to go to war again" over the state's IBT laws, he acknowledged that the sub-basin IBT idea had merit.

This study committee responded to previous presenters, including the League and the N.C. Rural Water Association, that emphasized the need to retain flexibility in state law for water/wastewater systems when considering ways to address any financial, management, and environmental challenges (read further background in this November 2013 EcoLINC article). These presenters all counseled the study committee members against a one-size-fits-all method of delivering these services across the state, arguing that the different models of service delivery allowed for tailoring system financing and operations to local circumstances.

Sanitary Districts in Bull's-Eye

Despite expressing a desire to target state resources toward failing water/wastewater systems, members of the study committee placed one type of water/wastewater service provider, sanitary districts, squarely in their legislative bull's-eye. Various committee members recalled examples of districts not meeting customers' service needs, driving down property values and jeopardizing occupancy permits for some homes and buildings.

Hartsell contrasted the governance of the state's sanitary districts, which were led by a separately elected board, with enterprise systems that were part of local government operations. He noted that with some sanitary districts, there appeared to be a disconnect between the financing of the system and the elected leadership. Another study committee member, Sen. Stan Bingham, suggested that the study committee recommend measures that would hold the elected boards of sanitary districts personally responsible for their decisions. North Carolina first established sanitary districts in 1927, making that model of water/wastewater service provision one of the oldest in the state. Therefore, study committee members pointed out, many of these legacy districts had some of the state's oldest infrastructure, and therefore the largest needs for assistance.

At the end of this portion of the committee's discussion, the study committee agreed to continue brainstorming ways to incentivize sanitary districts to transition to other models for water/wastewater service.

More Discussion Before Final Recommendations

While acknowledging that the study committee's recommendations were due to the ERC this month, Hager indicated that the study committee may continue to meet informally in the coming months to further develop other proposals that may assist failing water and wastewater systems. He expressed a desire to gather more information and ideas from the N.C. Department of Environment and Natural Resources as well as the Local Government Commission. Both of those state agencies regulate various aspects of water/wastewater system finances and environmental impacts.

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Two Legislative Committees Explore Local, State Stormwater & Development Approvals

Two separate interim legislative study committees each met in the past month to examine the procedures and practices followed by local governments when conducting development reviews and approvals. With a particular focus on stormwater design and construction approvals, a study committee of the Environmental Review Commission (ERC) and the House Committee on Land Development both engaged in discussions regarding best practices for local and state government development reviews. Recommendations for legislation from each of these committees could focus on institutionalizing best practices for these reviews, including a requirement to employ a professional engineer (PE) for review of technical engineering plans.

Technical Review of Engineering Plans Study Group

All four of the engineers serving the N.C. General Assembly joined a study group that met in early February to begin an examination of how the State and local governments review technical engineering plans. This study, directed by The Regulatory Reform Act of 2013, responded to concerns by the Professional Engineers of North Carolina (PENC), an advocacy trade group, that state and local reviewers often exceeded their authority in requiring changes to these plans.

Study committee co-chair Rep. Chris Millis, a PE, explicitly stated that the concerns to which this study responded came from state and local review of stormwater and sedimentation/erosion control plans. Specifically, he said, the PENC initiative arose out of a concern that state and local engineering plan reviewers "stepped outside their purview" in requiring changes to plans in exchange for plan approval. Millis said this situation forced a design engineer to assume legal liability for the performance of a device that included features the engineer did not include in the original design. Before leading the rewrite of a 2013 bill that resulted in this study, Millis was a main proponent of legislation that would have transferred that professional liability from the design engineer to a reviewing engineer.

Several League members joined the committee's discussion, which focused on one solution offered by PENC that would require a licensed professional engineer to supervise review of any designs that required a professional engineer's seal. Local governments expressed concerns that such a requirement could increase the cost of development and slow review times for those plan reviews.

Reps. Mike Hager and Rick Catlin, also both engineers, recognized these concerns. At the meeting, Catlin stated that he saw the potential for many unintended consequences in this proposal and urged the group not to rush its recommendations. Hager suggested that a simpler way to address the trade group's concerns could come in providing a method of appeal for any engineers that disagreed with a plan reviewer's interpretations, a suggestion with which Millis agreed.

Finally, the group agreed that further implementation of "best practices" for review processes would also address many of the engineering group's concerns. However, Catlin cautioned the study group not to take an approach that was too prescriptive, citing the need for positive back-and-forth discussion between designers and the reviewing entity. Previously, the League and other impacted local and state agencies offered suggestions to institutionalize certain review best practices in a report submitted to the ERC last month (read a synopsis In "Cities Detail Review of Engineering Plans Processes in Report," January 2014 EcoLINC).

The study group will likely hold more meetings before proposing recommendations to the ERC later this spring.

Land Development Study Group

Meanwhile, members of the House Committee on Land Development met for the first time in late January to begin examination of the ways the State and local governments oversaw the permitting and inspections of development. While the committee had a broad charge, the idea for the study topic grew out of troubles with a development in Lowell.

In that situation, the developer received approvals of its sedimentation/erosion control plans and other associated designs, but it did not complete a key retaining wall on community property before going bankrupt. As a result, nearby homeowners' properties received significant flooding, even during normal rainfall (photos here). Committee co-chair Rep. John Torbett, whose legislative district included the affected homeowners, proposed a bill last session to require developers statewide to secure bonds for retaining walls. Many local governments already require such bonds for various built components in developments, including shared infrastructure like retaining walls, culverts, and streets.

At the meeting, committee members questioned both state and local government staff on their individual roles in inspecting and approving various stages of development. Some legislators expressed frustration that these inspections tended to take place in silos, with little communication between the levels of government regarding problems on development sites. These legislators sought suggestions for ways to create uniformity in development inspections and approvals between jurisdictions and level of government. Significantly, this group of legislators included committee co-chair Rep. Mark Brody, who last session served as a sponsor of a bill that would have authorized a study of whether the State and local governments fairly implemented the state's residential building code via inspections.

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Unauthorized Spills Capture Legislative, U.S. DOJ, Media Attention

In a meeting that topped five hours, officials from the City of Burlington and Duke Energy Carolinas testified before the legislative Environmental Review Commission (ERC) yesterday regarding unauthorized spills each experienced in recent weeks. Burlington's spill involved 3.5 million gallons of raw sewage that flowed from a ruptured sewer main into the nearby Haw River, while Duke's spill involved an estimated 30,000-39,000 tons of coal ash that flowed from a detention pond into the nearby Dan River. The Burlington spill ranked as one of the state's top fifty sewage spills, while the Duke spill ranked as the nation's third-worst coal ash spill. Drinking water intakes for local governments existed downstream of both spills.

With Burlington's overflow, regulators at the N.C. Department of Environment and Natural Resources (DENR) counseled the City to delay required public notifications in order to give state regulators time to inspect the City's repairs, prompting outcry from environmental groupsdownstream N.C. elected officials and downstream Va. elected officials (also read this News & Record report). At yesterday's meeting, N.C. Division of Water Resources Director Tom Reeder told legislators, "It's not Burlington's fault. It's our fault, and it won't happen again." (See also "State admits mistake in Burlington waste spill notice," The Times News, Burlington.)

Burlington Spill

In addressing the ERC yesterday, Burlington utility officials explained to legislators the steps they took to address the overflow, saying that before it was contained, it represented approximately one percent of the total flow of the Haw River. According to City officials, the spill happened as a result of a break in the sewer force main leading into the East Burlington Wastewater Treatment Plant. This break, they said, caused a pump station adjacent to the river to shut down, which resulted in the overflow into the river. They also pointed out difficulties in containing the flow caused by winter weather conditions on January 28.

In addition, they presented contributing factors to the spill, which included:

  • The fact that the broken pipe was laid directly on blue granite rock, rather than the more typical gravel bed. They said they had no way of knowing this circumstance prior to the overflow.
  • Unusually cold temperatures
  • The effects of freezing/thawing pipes
  • Increased pressure on the line due to a recent plant upgrade completed by the City to comply with mandates in the Jordan Lake Rules

The legislative discussion that followed the City's presentation focused on the statewide need to replace aging underground infrastructure. At one point in that discussion, Rep. Rick Catlin (a professional engineer) recognized that issuing financial penalties to wastewater systems for overflows reduced the funds a local system would otherwise have available to address system needs like aging infrastructure. At other points in the discussion, both Sen. Gene McLaurin (former mayor of Rockingham) and Rep. Mike Hager (an engineer) suggested that the State and system owners should explore ways to inventory existing infrastructure and prioritize the biggest threats for upgrades and replacement.

An in-depth report of the Burlington spill appeared this weekend in The News & Observer. The coverage focused on calls by downstream local elected officials to shorten the notification window from the current 48 hours. This Times-News article details the types of repairs now underway to address the broken pipe. In addition, you may view presentations from yesterday's ERC meeting for the N.C. Division of Water Resources and the Haw River Assembly.

Duke Energy Spill

The appearance of Duke officials to testify before the ERC represented the company's most comprehensive public statements to date regarding the coal ash spill. The company presented detailed information about the circumstances surrounding the spill and the company's response, then took nearly two hours of questions before a lengthy public hearing.

Since the company began its response to the spill, environmental groups focused media attention on the fact that DENR had acted to thwart their legal maneuvers to force Duke to proactively address its containment of coal ash in detention ponds. As more information about the spill became available, the U.S. Department of Justice opened a criminal investigation into the company's actions with respect to the spill. A federal grand jury also subpoenaed DENR lawyers to appear before it in the matter.

For its part, DENR created this website as a source of information about the coal ash spill and announced a task force to further examine the issue of coal ash storage in ponds. 

In response to this spill, legislators announced last week that they would introduce legislation to push Duke toward a different solution to the storage of coal ash, which was a byproduct of coal-fired electricity generation. The leading House and Senate sponsors of the planned bill, Rep. Chuck McGrady and Sen. Tom Apodaca, represented legislative districts downstream from a Duke coal ash pond located just south of Asheville.

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Rulemaking Oversight Board Publishes Schedule for Rule Review

Preparing to oversee "the biggest regulatory review in the history of North Carolina," the state board that keeps tabs on agency rulemaking released its proposed schedule for combing through each of the state's thousands of rules. The Rules Review Commission (RRC), tasked with checking behind agencies to make sure they passed rules in compliance with state law and proper procedures, announced its "review of rules" timeline last month. Legislative leaders appointed all ten members of the RRC.

The RRC timeline proposed a five-year schedule for reviewing all of the state's rules. The legislature created the review of rules process last year as part of its omnibus regulatory reform law. The new process marked the largest single effort in the state's history to assess whether each rule in the state's administrative code was necessary. Before the RRC could evaluate the rules, though, the law directed the relevant rulemaking body to determine whether a rule was:

  • Necessary with substantive public interest, a determination which required the board or agency to readopt the rule
  • Necessary without substantive public interest, a determination which allowed the rule to remain in place as is
  • Unnecessary, a determination which caused the rule to expire

The RRC would receive these agency determinations in accordance with the timeline it published last month and was set to approve in March. 

Cities Affected First

Of importance to cities and towns, the majority of the rules that regulated water, wastewater, and stormwater services were promulgated by the N.C. Environmental Management Commission (EMC). The legislature chose many of these water quality rules as the first group of rules queued up to receive a re-look, and the EMC already categorized 375 of those rules as "necessary with substantive public interest" last month. 

After a 60-day public comment period likely to begin in March, the EMC would send its determination to the RRC. If the RRC agreed with the EMC's determination -- and the legislature refused its opportunity to make a different judgment -- the EMC would begin the lengthy task of re-adopting all 375 of those rules, likely beginning this fall. (The League developed a simple flowchart to explain this process; the RRC developed another.)

Cities and towns planned to follow this voluminous rulemaking effort closely. The innovation in this rules review process -- a mechanism that forced controversial rules to be re-adopted -- created regulatory uncertainty for regulated entities like municipalities. Depending on the outcome of a rule's re-adoption, compliance costs and business practices for cities and towns could change dramatically.

With its determination on this first grouping of rules in January, the EMC was just beginning its rule review responsibilities. It will spend the next four years making similar determinations for all of its 2,000+ rules and sending reports of those determinations to the RRC according to the RRC timeline. Specific deadlines for rule sets that most affected cities and towns (the EMC passed most of these rules) were:

  • July 2014: Irrigation contractors (21 NCAC 23)
  • October 2014: Water quality rules (15A NCAC 2B, 2H, 2T, 2U)
  • May 2015: Water pollution control system operators certification commission (15A NCAC 8), Water treatment facility operators (15A NCAC 18D)
  • June 2015: Plumbing, heating, and fire sprinkler contractors (21 NCAC 50)
  • September 2015: Water supply (15A NCAC 18C)
  • December 2015: Coastal Area Management Act land use planning (15A NCAC 7B)
  • January 2016: State Environmental Policy Act (01 NCAC 25), Sedimentation control (15A NCAC 4)
  • March 2016: Drinking water state revolving fund (15A NCAC 1N)
  • December 2016: Well construction standards (15A NCAC 2C), Water use registration and allocation (15A NCAC 2E)
  • April 2017: DENR coordination with State Environmental Policy Act (15A NCAC 01C), Solid waste management (including hazardous waste) (15A NCAC 13A, 13B, 13C)
  • January 2018: Coastal Area Management Act (15A NCAC 7H, 7I, 7J, 7K, 7L, 7M)
  • February 2018: Groundwater classifications and standards (15A NCAC 2L), underground storage tanks (15A NCAC 2N, 2O, 2P)
  • December 2018: State participation in beach renourishment projects (15A NCAC 2G), Water supply (15A NCAC 18C), Well contractor certification rules (15A NCAC 27)

Read the text of each of these rules in the N.C. Administrative Code online. Also, for more coverage of this new process as it relates to cities and towns, read the League's previous coverage in EcoLINC:

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State Targets Fall Completion Date for Oil & Gas Extraction Rules

The state's two main rulemaking bodies tasked with governing oil and gas extraction said they remained on track to pass all relevant regulations this fall. Staff and leaders of the N.C. Mining & Energy Commission (MEC) and the N.C. Environmental Management Commission (EMC) told legislators and the public in recent weeks that they expected to complete their rulemaking assignments by the legislature's October 1 deadline. In addition, they reached consensus on two issues of importance to local governments: setbacks and sedimentation/erosion control regulations.

MEC Rulemaking Timeline

The N.C. General Assembly created the MEC in 2012 and assigned it the lion's share of the rulemaking responsibilities over oil and gas extraction activities. After a period of time dedicated to internal organization, the Commission began developing rules last year. The Commission already developed most of the rules of interest to cities and towns (see below for a report on the latest rule passed, dealing with setback distances), though the rule addressing management of wastes will receive further consideration at today's full Commission meeting.

Earlier this month, MEC Chair Jim Womack told legislative members of the Joint Legislative Commission on Energy Policy, an interim commission of legislators that oversees the work of energy policy boards in the state, to expect the MEC to finish development of all its rules by May. This timing would allow a 60-day public comment period beginning June 2. Currently, he said, the MEC anticipated holding three public hearings during that period, in Sanford (June 17), Greensboro (June 23), and Raleigh (July 11). The MEC would review and respond to public comments in August, with a final vote slated for the Commission's September 5 meeting.

MEC members expressed concerns over the board's ability to meet these rulemaking targets, given the large workload given to the Commission. At their January 14 meeting, commissioners considered other options, including reducing the rules to be passed by the October 1 deadline to only those necessary for the oil and gas development industry to begin activities. Another possibility they debated involved asking the N.C. General Assembly to remove typical administrative procedures that apply to most of the state's rulemaking processes. However, Womack did not outline either of these options in his latest presentation to legislators, which requested other statutory changes to enable the MEC to pass its preferred regulations for the industry.

EMC Rulemaking Timeline

The EMC retained oversight of certain regulations that would apply to the oil and gas extraction industry, including stormwater, land application of liquid wastes, and reclaimed water. In a January presentation to the MEC, state environment agency staff members reported the specific areas in which the EMC expected to revise its rules to accommodate this nascent industry:

  • Stormwater. Rules would address site stabilization, required structural controls, and full pad containment during the various phases of well construction, drilling, and production.
  • Land application. Rules would disallow on-site disposal of drilling muds, cuttings, and produced water without an individual permit.
  • Reclaimed water. Rules would allow reuse of flowback water under certain conditions approved by the MEC.

Though directed to complete additional air quality rules specific to the oil and gas extraction industry, the EMC reported that it would not propose additional rules because state agency air quality staff analyses indicated existing rules were adequate to address any expected emissions from this industry.

According to agency staff, the EMC would begin its rulemaking tasks this spring and finalize them in September, in time to meet the legislature's October 1 deadline. 

Setback Rule Nears Final Version

The MEC voted last month to establish setback standards (read more in this News & Observer article). Under the approved standards, drilling and extraction would be required to occur at least 650 feet from homes; other "high-occupancy structures" such as schools, daycares, and hospitals; water wells; and other sensitive landmarks. The rule contained an exception to this general setback rule, providing affected landowners an avenue to request a variance for less-restrictive setbacks from any feature except high-occupancy structures. The Commission also adopted smaller safety buffers for drilling and extraction from streams, wetlands and flood plains.

Importantly, throughout the MEC discussion of this rule set, commissioners expressed their desire for local governments to retain the ability to establish setback distances within their jurisdictions, particularly for any structures proposed near industry sites after industry activities had begun.

Because the full Commission made several significant changes to the draft setback rule (read a recap of these changes in the meeting minutes), the final vote remanded the rule set to agency staff for text modifications in line with the Commission's discussion. Therefore, the MEC must give its final approval of the rules at a future meeting.

Sedimentation/Erosion Control Oversight

The issue of local versus state administration of sedimentation and erosion control regulations became an point of discussion in recent meetings of the MEC's Coordinated Permitting Study Group. During last year's Long Session, the legislature tasked the study group with developing one coordinated permit for the various regulations affecting the oil and gas extraction industry. Because the state typically allowed local governments to request delegation of the state's sedimentation and erosion control programs, the legislature's desire to streamline and consolidate industry permitting at the state level hit a snag.
The state's top sedimentation and erosion control regulator told MEC commissioners last month that existing law allowed the Sedimentation Control Commission (SCC) to remove authority over this program that it had delegated to local governments, specific only to this industry. The MEC learned that the SCC would take steps to require local governments to modify their memorandums of authority to return this authority to the state while leaving remaining delegation of the program to local governments. That way, state agency staff explained, the MEC could consolidate this activity into its unified oil and gas extraction permit. Read the N.C. Attorney General's letter that analyzed this legal question.

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Collins Hire to Bolster NCLM Regulatory Advocacy

The League announced the hiring of Sarah Collins as its Regulatory Affairs Associate last week. Collins, a May 2013 graduate of the Campbell University School of Law, will begin work at the League Friday.

“We are excited to have Sarah joining our Governmental Affairs team,” said Paul Meyer, League Executive Director. “She brings significant prior experience with municipal government and the N.C. General Assembly, as well as detailed knowledge of the environmental regulatory issues that face our cities and towns. We are confident Sarah will be able to continue executing a robust regulatory advocacy program on behalf of all of our state’s cities and towns.”

Collins is a Raleigh native who received her undergraduate degree from Meredith College. While in law school, Collins pursued internships focusing on environmental regulatory policy with the City of Raleigh, the N.C. Attorney General Office’s Environment Division, and the League. Before returning to school for her law degree, Collins worked as a legislative assistant at the N.C. General Assembly as well as a legal assistant with DeMent, Askew, Gammon & DeMent. She also served in several roles with organizations that advocated on environmental regulatory policy matters.

“I am glad to have this opportunity to pursue common-sense environmental regulations for cities and towns across the state,” Collins said. “In my previous roles, I have seen how hard municipalities work to be good stewards of the environment while complying with the many state and federal mandates placed upon them, and I am honored to have the opportunity to work on their behalf. I look forward to continuing to develop the League’s regulatory advocacy program, which plays a key role in making sure municipalities are not subject to burdensome environmental regulations that drive up the cost of services for all city businesses and residents.”

As the Regulatory Affairs Associate, Collins will work with NCLM Legislative & Regulatory Issues Manager Erin Wynia as a lobbyist on municipal regulatory issues such as water quality and investor-owned electrical utility service. In implementing the day-to-day aspects of the program, Sarah will have primary responsibility for regulatory issue management, relationships with League members and state regulators, written regulatory communications, the League's Regulatory Action Committee, and League affiliate organizations such as the Storm Water Association of North Carolina. With this hire, the League has committed additional resources to its regulatory advocacy program, ensuring active engagement on all of the membership's regulatory priorities.

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Regulatory Briefs

DWR released the draft 2014 303(d) list for public comment, due to the agency March 14...Register now for e-DMR training held by DWR at the Salisbury Civic Center this Thursday, February 20 from 9:00 am--12:00 pm...The Clean Water State Revolving Fund will receive applications for its latest round of funding through April 1...The EMC will review two recently-completed hydrologic models in the coming months; send comments on the Tar-Pamlico model by March 17 and the Roanoke model by April 4...Gov. McCrory and the Council of State approved the contract awarding SolarBee the opportunity to test in-lake treatment technology for Jordan Lake...Pres. Obama selected Heather McTeer Toney, an attorney and former mayor of Greenville, Miss., to serve as EPA Region IV Administrator...Registration opened for the state's Low Impact Development Summit in Raleigh March 26-27...EPA announced it would include algal toxins such as cyanobacteria on its list of contaminants for which utilities would collect data in its next unregulated contaminant monitoring rule effort.
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NCLM and State Government Meetings & Events