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NCLM News & Political Report

Legislators and regulators alike have kept up a bruising pace in pushing forward environmental proposals this past month. And with candidate filing complete for this fall's legislative races, we now know which areas of the state will see intense media scrutiny of candidates for office.

Of the 170 General Assembly seats -- all of which are up for election this November -- 60 districts contain incumbents that have already won their races, showing the advantages of incumbency:

  • 7 Senate Republicans
  • 4 Senate Democrats
  • 22 House Republicans
  • 21 House Democrats

In addition, there are only 14 open races (no incumbent) of the 170 available seats this fall, five in the Senate and nine in the House. Many of these races will be the most competitive in the state, making them the ones to watch. However, the leverage that comes with partisan redistricting means that to keep their legislative majorities, Republicans need only to win fourteen Senate seats and thirty House seats this November.

In advance of these match-ups, legislators pressed ahead with interim committee and study group meetings this past month. Unlike several previous interims between a Long Session and Short Session, legislators this interim instituted stakeholder processes to work out compromise bill language in advance of session. While it has made for a hectic calendar for the League and its members, ideally, these pre-session discussions would ensure a smoother passage for these proposals, many of which would be introduced with the endorsement of an interim committee recommendation. We detailed the initial proposals from many of those environment working groups in articles below.

In the midst of this legislative-driven activity, regulators at the N.C. Department of Environment and Natural Resources (DENR) took the focus of unrelenting media coverage of the coal ash spill at a Duke Energy Carolinas facility last month (read our initial coverage of that spill in last month's EcoLINC). That press attention compounded in recent weeks with news that DENR eliminated nearly one-third of the positions in its Ecosystem Enhancement Program unit ("DENR cuts jobs in wetlands restoration program," News & Observer) and nearly 13 percent of the positions in the Division of Water Resources, effective March 1 ("Cuts to DENR regulators jarring in wake of Dan River spill," News & Observer). Two-thirds of the position losses were vacant, while many other employees chose to retire.

The work of these state regulators to implement State and federal environmental programs continued despite the staff cuts and scrutiny of its operations. We reported on a few of those actions below, including development of a new stormwater tool to make plan design and review easier and actions on the state's water quality rules.

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League Efforts to Remove Environment Ordinance Moratorium Successful at ERC

A legislative working group proposed language Wednesday that would remove a current de facto moratorium on local governments' ability to pass environment ordinances. The League membership supported this new proposal, which responded to a 2013 law that set a 100% vote requirement for a unit of local government to pass any environment ordinance.

The proposal to remove the moratorium resulted in part from the efforts of the League members to point out problems with the 2013 law. Since last spring, the League membership informed legislators of the severe ramifications of any law that would restrict local governments' ability to enact local environment ordinances. The comments continued with testimony at a January committee meeting and a February public hearing on the issue. Read specifics about the points made by the League and its members in "League, Local Officials Brief Legislators on Environment Ordinances" (February 2014 EcoLINC).

Most often, cities and towns passed environment ordinances to comply with state and federal mandates. In justifying the proposal to the legislative Environmental Review Commission (ERC), working group co-chair Rep. Chuck McGrady explained that members believed the moratorium did not actually address the problems the legislature wanted to fix with the ban on local environment ordinances. Working group co-chair Sen. Andrew Brock agreed, stating that the ban's authors really wanted to address local ordinances that regulated aesthetics, such as tree ordinances. Reiterating Sen. Brock's point, Rep. McGrady said the working group struggled to accurately determine what was an "environment" ordinance. Further, he explained, no state agency with environmental regulatory authority had reported infringement on its authority by a local government (with one exception related to regulation of fertilizer applications).

The proposal introduced last week must receive a formal recommendation from the ERC and then pass through both legislative chambers and the Governor before becoming law. In addition, despite the potential for this recommendation to become law, development interests that supported last year's law will likely continue pursuing proposals to restrict local governments' ability to enact regulatory measures such as environment ordinances.

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House Committee Expresses Skepticism over Utility Management, Salaries, Stormwater Fees

The Public Enterprise Systems and Use of Funds Committee began its series of interim meetings last Monday with House members expressing skepticism over the ability of local officials to properly manage utilities. Before hearing a detailed explanation of the various public enterprise services across the state and the allowable use of the funds generated from those utilities, committee co-chair Rep. Tim Moffitt stated that the charge of this committee was "to look at these enterprise funds and determine the extent to which these funding mechanisms deviate from providing services without favor or bias for financial or political gain." Moffitt also opened with these strong remarks, stating, "Concerns have been raised over the years that some of our cities are leveraging the power that comes with controlling these critical state resources — by capriciously withholding them from the citizens who live outside their corporate limits and even neighboring local governments."

Comments regarding municipal control over its service area were similar to those made by Rep. Tim Moore in the Property Owner Protection Committee meeting earlier this month. Both these committees were the result of a suite of studies authorized last fall for the Legislative Review Commission, and therefore were eligible to suggest legislative action in the upcoming Short Session. However, in a meeting with League staff, Moffitt committed not to run legislation from either of these committees in the upcoming Short Session; instead, he said he intended to propose a package in the 2015 Long Session.

Cost Allocation and Stormwater Fees

During discussion, committee members raised specific concerns in regards to cost allocation of public enterprise funds. Cost allocation references the practice of dividing a local government employee's work time between the enterprise fund and general fund in proportion to the employee's time spent on tasks related to each purpose. Members expressed doubts that proper accounting controls were actually in place to ensure that public enterprise funds were not supplementing general fund activity. Specifically, Rep. Mike Stone asked questions regarding salaries for utility managers/directors in relation to public enterprise funds and if there were oversight or limits on the use of enterprise funds to pay those salaries.

In discussing the finances of public enterprises' operations, Vance Holloman, the Deputy State Treasurer and Director of the State and Local Finance Division of the North Carolina Department of State Treasurer, assured members that water and sewer systems' transfer average was below 1% of operating revenues in total. He explained that his office contacted local governments if it felt that a general fund was too dependent on transfers from public enterprises, and said that usually these transfers were reimbursements for services provided to the public enterprise. He continued his explanation, stating that these services should be reflected in the enterprise's operating cost -- otherwise it distorted the cost of operations of the general fund and made it look like the general fund was subsidized by the enterprise fund.

In a related line of questioning, Rep. George Cleveland raised specific concerns about stormwater fees and inquired into how stormwater fees can be used and whether municipalities were supplementing their general fund with their stormwater fee. Jeff Hughes of the Environmental Finance Center at UNC explained that unlike other public enterprises, North Carolina law limited what stormwater fees can be used for, requiring that revenue be used for "stormwater related expenditures." However, he did clarify that what was regarded as a "stormwater related expenditure" was not defined. Rep. Cleveland requested an overview of what municipal stormwater fees should be covering. The discussion of stormwater fees tied back into the overarching discussion of public enterprise cost allocation.

The Public Enterprise study was modeled on 2013 legislation sponsored by Rep. Moffitt. That legislation, however, went beyond this study's listed tasks by including language emphasizing that excess revenues accumulated by public enterprise systems should be used to lower rates, pay off debt service in advance, and make investments in the system. Rep. Moffitt co-chairs this House committee with Rep. Brian Brown. The committee will next meet on April 7 at 1:00 pm in Legislative Office Building Room 544.

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Legislators, Regulators Take Dueling Actions over Gravel Provision

State environmental legislative and regulatory leaders took opposing steps last week to address a lingering issue from the 2013 legislative session regarding how state law considered gravel when controlling for stormwater runoff.

ERC Releases Proposed Legislation to Clarify Gravel

The stormwater working group of the Environmental Review Commission (ERC) proposed draft legislation Wednesday to clarify how state laws treated gravel for the purposes of stormwater regulation. As the League previously reported, legislative recommendations included a provision directing N.C. State University's Biological and Agricultural Engineering Department (BAE) to study the infiltration rates of various aggregate surfaces -- specifically, the extent to which different aggregate surfaces were pervious, impervious or partially impervious. The BAE Department would receive $110,000 to implement this study, and the interim report on the results of the study would be due no later than September 1, 2014.

This study grew out of last session's omnibus regulatory reform bill, which excluded gravel from the definition of "built-upon area." Over the past few months, this legislative study committee further studied the effects of stormwater runoff from non-paved surfaces, and League members addressed this committee in December.

Another section of the proposed legislation stated that neither the N.C. Environmental Management Commission (EMC) nor N.C. Department of Environment and Natural Resources (DENR) would have the authority to define the term "gravel" for purposes of implementing stormwater programs. This aspect of the proposed legislation responded to a recent undertaking by the EMC, which was in the process of adopting a proposed temporary rule that clarified the Regulatory Reform Act of 2013's exclusion of gravel from the state's definition of "built-upon area."

EMC Approves Temporary Rule

At the EMC meeting Thursday, Commissioners voted to approve temporary rule changes that defined gravel as "a clean or washed, loose, uniformly-graded aggregate of stones from a lower limit of 0.08 inches up to 3.0 inches in size." The League, along with its affiliate organization the Storm Water Association of North Carolina (SWANC comments here), submitted comments expressing support of the EMC's temporary rulemaking proposal because it allowed local stormwater programs to remain in compliance with their regulatory mandates. In addition, SWANC Board member Daryl Norris spoke in favor of the the proposed temporary rule at a public hearing in January.

Next Steps

The EMC's approved changes will next go to the Rules Review Commission (RRC) this week for approval, and the EMC will likely initiate a permanent rulemaking later this year that will take into account any future legislative actions on the topic.

In anticipation of this permanent rulemaking, the League's comments also offered suggestions that would address the extent of rainfall infiltration allowed by various non-paved surfaces. Those suggestions included the following science-based considerations:

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

Read further background regarding the EMC's adoption of this temporary rule in the January 2014 and February 2014 editions of EcoLINC.

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Recommendation Standardizes Plan Review Processes, Increases Reporting

After meeting once last month, a legislative working group formed to study how State and local governments conducted development reviews such as stormwater, sedimentation/erosion control, and water and wastewater system designs recommended an initial draft of legislation that would standardize those practices.

This study, directed by The Regulatory Reform Act of 2013, responded to concerns by the Professional Engineers of North Carolina, an advocacy trade group, that State and local reviewers often exceeded their authority in requiring changes to these plans. Before landing on the study language, legislators last session considered other proposals such as one that would have required review of plans by a licensed Professional Engineer (PE) and a seal by that PE. Because a seal transferred liability for the performance of that device from the designing engineer to a plan reviewer employed by a local government, the League opposed this proposal.

The draft legislation would also impose annual reporting requirements on affected state and local programs. The local programs that would be subject to this legislation included those operating a delegated program from a state agency such as the N.C. Department of Environment and Natural Resources, the N.C. Department of Transportation, and the N.C. Department of Health and Human Services. To fall under the proposal's reporting requirements, those delegated programs must also grant permits, licenses, and approvals of development plans.

Specific Proposals

The recommendation contained six related proposals to address the engineer group's concerns, aimed at the groups listed above. Those recommendations were to:

  1. Standardize review procedures so that comments were clearly separated into those required for approval and those that were mere suggestions
  2. Identify the particular statutory or regulatory authority when conditioning plan approval on a change
  3. Provide for PE review of any “innovative design” (designer must pay for consulting PE review services if jurisdiction did not have a PE on staff)
  4. Spell out an internal review process for circumstances in which the plan reviewer and designer disagreed about required changes and/or the legal authority under which required changes were being required
  5. Change, to the extent practicable, any job titles if an employee reviewed plan designs and had the word “engineer” in their title, but was not in fact a PE
  6. Report the results of the above requirements annually to the ERC until January 1, 2019

The working group met today to refine these initial proposals before a vote by the legislative Environmental Review Commission (ERC) in April. Any legislation recommended by the ERC is eligible for introduction in the upcoming legislative Short Session.

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Pair of Studies Would Incentivize Water System Interconnection

An interim legislative working group took the League's recommendations to explore ways the State could incentivize interconnection of water and wastewater systems, suggesting a pair of studies Wednesday.

One study would direct the legislature's Program Evaluation Division to study possible state financial incentives for "well-performing" systems to assume service in areas served by "failing" utilities. That study would also look at three regional systems -- Charlotte-Mecklenburg Utilities Department, Cape Fear Public Utility Authority, and Two Rivers Utilities -- to determine if the regionalization benefits experienced by those systems could be replicated across the state. The proposal did not include a due date for the study, instead leaving the timetable up to the direction of a legislative oversight committee for the Division.

A second study to address measures that would encourage interconnection of water and wastewater systems, to be completed by the N.C. Department of Environment and Natural Resources, would examine the circumstances under which the state's strict interbasin transfer (IBT) laws could be relaxed, such as in emergencies or between sub-basins. Additionally, the study would examine whether certain types of IBTs should be exempt from IBT requirements altogether. The draft included an October 1, 2014 due date for this report.

In the lead-up to these recommendations, the working group heard from numerous groups, including the League. The working group, 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. In Rep. Moffitt's bill, a study committee would examine the various types of statutory entities under which water and sewer service was provided in the state.

These recommendations will next be considered by the legislative Environmental Review Commission (ERC), an interim committee that may draft legislation for the 2014 Short Session.

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DENR Readies Stormwater Tool to Make Designs Easier for Cities, Developers

A workgroup that included state environment officials, League members, and representatives of League affiliate the Storm Water Association of North Carolina (SWANC), capped a year-long effort to develop "Storm-EZ" at its final meeting earlier this month. Storm-EZ is a tool that will streamline calculations used to determine the performance of stormwater controls, including low-impact development devices. Low-impact development is a voluntary approach to stormwater management that mimics a site's natural hydrology by disconnecting impervious surface areas and incorporating designs that infiltrate, filter, store, evaporate, and detain runoff close to its source.

Now in its beta version and made available by the N.C. Department of Environment and Natural Resources (DENR) for testing, the tool aims to ease the ability of stormwater device designers and local government plan reviewers to utilize and receive credit for a broader range of stormwater devices. These additional options can lead to less expensive stormwater control costs for developers, as well as quicker review by cities and towns. Any member of the public may test the new tool at the upcoming N.C. Low Impact Development Summit, held March 26-27 in Raleigh (register here). In addition, anybody may currently request to use the tool from DENR when designing or reviewing a project.

Workgroup Updates, Clarifies BMP Manual

In addition to giving input on the Storm-EZ tool, members of the workgroup assisted state stormwater officials in updating and clarifying parts of the state's Best Management Practices (BMP) Manual. In a series of memos released March 7, DENR announced the changes and clarifications, which included:

  • Options for meeting the state's diffuse flow provisions
  • Voluntary options to use the SCS Discrete Number Curve Method as an alternative to the typical Simple Method for calculating runoff volume
  • Options for complying with the "no discharge to SA waters" requirement
  • Standards for relaxing the separation between infiltration systems and the Seasonal High Water Table

All of the changes described above, as well as the BMP Manual itself, were guidance and expressions of state policy on stormwater designs. Therefore, they were not requirements.

Next Updates: Fast-Track Permitting Workgroup

The next updates to the BMP Manual come as a result of the passage of S.L. 2013-82 Fast Track Permitting, which mandated the creation of minimum design criteria (MDC) for certain stormwater devices. Once part of the state BMP Manual and administrative code, both the State and its locally-delegated stormwater programs will issue permits without review of device designs for those designs that fit under the MDC. Designers and reviewers may find the Storm-EZ tool provides the best assistance in evaluating whether a particular design meets the MDC. The MDC will detail standards for siting, design, construction, and maintenance of these thirteen commonly-used stormwater controls:

  • Level spreader & vegetated filter strip
  • Stormwater wetland
  • Wet detention basin
  • Sand filter
  • Bioretention
  • Disconnected impervious surface
  • Swales
  • Infiltration devices
  • Dry detention basin
  • Permeable pavement
  • Rainwater harvesting system
  • Green roof
  • Proprietary systems

DENR committed to involving League and SWANC representatives on the MDC workgroup, which meets for the first time Monday. Many workgroup members (listed in this workgroup charter) also served on the LID workgroup described above. The workgroup exists to advise DENR regarding organization of and updates to the BMP Manual, as well as educating stormwater designers and reviewers about those updates.

Under the law creating the MDC, the group must provide a status report to the legislative Environmental Review Commission by September 1. Then, next year, it will provide recommendations to the N.C. Environmental Management Commission, which must adopt a rule regarding this fast-track permitting process by July 1, 2016, addressing:

  1. A process for permit application, review, and determination
  2. A process for ensuring compliance with the MDCs
  3. A specification for the types of professionals that are qualified to prepare a permit application and the types of qualifications such professionals must have
  4. A process for establishing the liability of a qualified professional who prepares a permit application for a stormwater management system that fails to comply with the MDC

Read more background on development of this law last year and the League's involvement in those discussions.

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Legislators Grapple with 'Onerous' Jordan Lake Costs, Solutions

Meeting last month for its second of four interim study meetings, the legislative Committee on Jordan Lake grappled with the enormous cost burden of the Jordan Lake Rules (JLR) and the equities of requiring lake clean-up measures from the various sources that contributed to the lake's impairment. The discussion followed a presentation from N.C. Division of Water Resources Director Tom Reeder that focused on implementation cost estimates for the various components of the JLR.

At the meeting, legislators pressed Reeder on the ways in which the State could offer regulated entities alternative clean-up measures, including less-expensive ways to retrofit existing development to prevent stormwater runoff. At the meeting, Reeder twice referred to the existing development requirements as the strategy's "most onerous" aspect. To assist in lowering the cost burden placed on local governments that must pay for these retrofits, Sen. Neal Hunt suggested that the legislature offer incentives. The legislature imposed the water quality-based nutrient management strategy in 2009, requiring strict measures from local governments, developers and agriculture, to reduce nutrient runoff to the lake.

To supplement their focus on regulatory compliance costs, at tomorrow's meeting, committee co-chairs Sen. Rick Gunn and Rep. John Faircloth scheduled presentations from several affected wastewater systems, including League members from Burlington, Durham, Greensboro, and the Orange Water and Sewer Authority. Specifically, the chairs asked each system to explain their efforts to achieve compliance with the Rules and their plans to maintain compliance in the future.

Also at their February meeting, in addition to the discussion about reducing the cost burden on local governments, committee members asked for more information about various technologies that may be available to scrub the lake's water of toxic algae. Later this spring, the State will begin testing one of these technologies in some of the most impaired areas of the lake. Called "SolarBee" aerators, these devices were included as a provision in last year's state budget bill.

This JLR study, authorized in the omnibus "Legislative Research Commission" group of interim studies, came as a response to legislation last session that delayed portions of the Rules. Any recommendations from the committee would be eligible for introduction as legislation in the upcoming Short Session.

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Draft Bill Tightens Wastewater Spill Notification

At its Wednesday meeting, the legislative Environmental Review Commission (ERC) discussed a draft bill that tightened wastewater spill reporting. The proposal responded to a highly-publicized late January sanitary sewer overflow event in Burlington that the ERC learned about at its meeting last month (read about that discussion in "Unauthorized Spills Capture Legislative, U.S. DOJ, Media Attention").

After hearing that state environmental officials counseled the City to delay its required public notice of the spill, legislators sought to speed up that notification process. First, the draft bill proposed changing the window of time for a system to issue a press release from 48 hours to 24 hours. The proposal also would codify an existing state regulation that required systems to alert state regulators of a spill greater than 1,000 gallons within 24 hours of determining the untreated wastewater had reached the State's waters.

The ERC will vote to finalize this recommendation at its April meeting. Once formally recommended, the draft bill would be eligible for introduction in the upcoming Short Session that begins on May 14. Then, to become law, the bill would proceed through the normal legislative process, ending with consideration by the Governor.

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Judge's Decision Upends Law for Land Application Sites' Groundwater Contamination

Ruling in a case that could determine the extent of clean-up actions for groundwater contamination, a Wake County Superior Court judge earlier this month found that some industrial facilities must take "immediate" actions to eliminate sources of contamination. Specifically, those actions would be triggered when discharges caused levels of contamination in excess of state groundwater quality standards. The ruling applied to facilities that were permitted prior to December 30, 1983, and it stood contrary to prior interpretations of state rules by environmental regulators.

While it considered how state groundwater regulations applied to coal ash ponds operated by Duke Energy, the ruling extended to other industrial activities such as land application of biosolids. Biosolids are the nutrient-rich organic materials resulting from the treatment of the residue generated during the domestic wastewater treatment process. After being treated to strict standards, biosolids are safely recycled and used as fertilizer when "land applied" -- or irrigation sprayed -- on agricultural fields.

If upheld, the ruling could force cities that have long operated Class B biosolids disposal programs -- those first permitted before December 30, 1983 -- to undertake expensive "immediate" actions to eliminate the sources of any discharges that contributed to a violation of the state's groundwater quality standards.

NCLM Supported Duke in Previous Legal Actions

The ruling, the result of an appeal by environmental groups following a 2012 decision against them by the N.C. Environmental Management Commission (EMC), came at a time when Duke faced intense public scrutiny of its coal ash disposal practices. The scrutiny came after a February spill of 39,000 tons of ash into the Dan River, the country's third-highest volume coal ash spill. (Read more about the ruling in "Judge rules Duke must halt groundwater pollution at coal ash sites," News & Observer.)

The League participated in the 2012 EMC action with a written submission in support of Duke's position. Like Duke, League members sought to preserve a longstanding interpretation of state regulations. In particular, the state typically interpreted its rules such that it did not subject older sites to an immediate elimination of contamination sources in the event of a groundwater quality standard exceedance. Likewise, the utility and cities both sought to preserve another long-held interpretation that did not require a full "corrective action" plan if the contamination stayed within a facility's compliance boundary. A compliance boundary is a boundary around a disposal system at and beyond which the state's groundwater quality standards may not be exceeded.

In that 2012 ruling, the EMC supported Duke's position, so the environmental groups appealed that decision to Wake County Superior Court. Read more background on this action in “EMC Declines Ruling with Potential Land Application Impacts” (December 2012 EcoLINC). 

EMC Continues Legal Fight

In the wake of this recent ruling, the EMC decided to keep up its legal fight. In a closed session Thursday, the EMC voted to appeal the Superior Court decision. Such court action could ultimately preserve the state's previous interpretation of its groundwater quality rules, depending on which way an appeals court sided.

Alternately, affected interest groups could seek legislation during the upcoming Short Session that would render the Superior Court decision moot and preserve the state's previous stance regarding groundwater contamination clean-ups. Already, the legislature passed a law last year that cancelled one of the positions sought by environmental groups in 2012. Contained in the Regulatory Reform Act of 2013, the provision would prohibit state regulators from requiring clean-up actions so long as a source of groundwater contamination stayed within a compliance boundary. In other words, under this new law, the legislature made it clear that exceedances of groundwater standards may still occur within a facility's compliance boundary.

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Lawmakers Move to Relax Wetlands Mitigation Requirements

Responding to an ongoing push by development interests to scale back the state's isolated wetlands mitigation requirements, legislators proposed changes to those requirements last week. In a draft bill released to the legislative Environmental Review Commission (ERC), a stormwater working group recommended lowering mitigation requirements and requiring more impacts to isolated wetlands before mitigation requirements were triggered. If enacted, each of those changes would lessen the regulatory burden on developers.

Under the state's current isolated wetlands program, any landowner that disturbs isolated wetlands above a threshold amount must mitigate for those lost ecological functions. Mitigation typically takes the form of payments to a mitigation bank, which in turn restores or preserves nearby lands to permanently protect water quality in the area of the land disturbance.

The state's isolated wetlands program is an additional regulatory requirement to other State and federal programs that require mitigation for stream, buffer, and nutrient impacts. Opponents of the state's isolated wetlands program succeeded in pushing legislators to examine the issue through a 2012 interim study committee, and again during this interim.

Most recently, a separate committee from the ERC stormwater working group met late last month to receive information regarding State and federal wetlands and stream mitigation activities. While the House Committee on Wetland and Stream Mitigation was authorized to consider many facets of wetlands and stream mitigation, one of its permitted areas of study was similar to the issue examined by the ERC working group. Specifically, the Wetland and Stream Mitigation Committee could examine whether the current mitigation fee payment system represented the most efficient and effective way to provide mitigation. The committee was tasked with determining whether the program could be revised to lessen its impact on the state's businesses and industries.

Legislative Recommendation

Last week's recommendation presented to the ERC would lower the current isolated wetlands mitigation requirements to a 1:1 ratio. In addition, it would raise current thresholds for disturbances that trigger mitigation requirements in the following ways:

  • For properties east of I-95, more than one acre of disturbances
  • For properties west of I-95, more than one-third of an acre of disturbances

Lastly, the draft bill would direct the N.C. Department of Environment and Natural Resources to study the applicability of these mitigation triggers to mountain bogs.

To be eligible for consideration in the Short Session that begins May 14, the ERC must vote to recommend the draft legislation. Then, to become law, it must follow the typical process for legislative approval and consideration by the Governor.

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Board Advances Surface Water, Wetlands Rules for Review

The N.C. Environmental Management Commission (EMC) continued the state's "review of rules" process by voting last week to send the Water Quality Committee's assignment of categories to 375 of the state's surface water and wetlands rules out for public comment. Specifically, the Commission approved a category determination of "necessary with substantive public interest" for the following rules:

The N.C. Division of Water Resources (DWR) opened the 60-day public comment period yesterday, and it ends on May 24. The public may submit comments on the EMC's assignment of categories or the substance of the rules themselves.

The legislature created the review of rules process last year as part of its omnibus regulatory reform law. The Rules Review Commission (RRC) was tasked with checking behind agencies to make sure they passed rules in compliance with state law and proper procedures, and announced its "review of rules" timeline in January. The timeline proposed a five-year schedule for reviewing all of the state's rules. However, before the RRC could evaluate the rules, 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

If the EMC ultimately assigned the "necessary with substantive public interest" category to all 375 rules considered last week, the EMC must readopt each of those rules -- a substantial undertaking. Readoption of a rule potentially opens the rule up for amendments or deletion altogether. (The League developed a simple flowchart to explain this process; the RRC developed another.)

Next Steps for Review

Since these rules cover many regulations affecting cities and towns (rules governing wastewater and stormwater discharges, buffers, reclaimed water, land application of biosolids, and various nutrient management strategies), the League will work over the 60-day comment period to provide insight into whether any rule was miscategorized and which need amendments, should be deleted, or should be readopted without change.

As dictated by the process set up by the legislature in HB 74 Regulatory Reform Act of 2013, the EMC anticipated the following timeline for the remaining decisions regarding the "2B," "2H," "2T," and "2U" rules:

  • March: EMC voted to send report on this first set of rules to a 60-day public comment period; public comment period began March 17.
  • May: May 24 deadline for public comment on whether a rule was placed into the correct category; DWR compiles and responds to comments.
  • July: DWR provides a status report to the Water Quality Committee.
  • September: DWR presents its final recommendation to the EMC for approval.
  • October: likely deadline for report to the RRC; RRC reviews and approves report, possibly with changes; legislative oversight panel decides whether to weigh in on categorizations.
  • Late 2014-on: EMC initiates readoption of any rules categorized as "necessary with substantive public interest."

With its determination on this first grouping of rules, 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.

For more coverage of this new process as it relates to cities and towns and specific deadlines for other rule sets, read the League's previous coverage in EcoLINC:

In addition, the Department of Environment and Natural Resources (DENR) developed its own rules review website to assist in implementation of the rule review process by listing rules as they become available for public comment and to administer a mailing list with similar notifications.

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Regulatory Briefs

After a presentation to the EMC last week, the State submitted its draft Nutrient Criteria Development Plan (latest version here) to EPA for review...The EMC remains on track to consider changes to the state's surface water quality standards, as part of the triennial review, in May...State wastewater regulators noticed the draft NPDES general permit for water treatment plant discharges of filter backwash, sedimentation washdown, and decant water, and will accept comments through April 18...Head DENR officials reversed course earlier this year on the agency's decision to allow the controversial Cleveland County reservoir project to proceed, rescinding the waiver of a water quality permit and reinstating the requirement for the project to complete an environmental impact statement...The state announced that it will accept 319 grant applications through May 29 for projects that implement a DWR-approved watershed restoration plan to restore waters impaired at least in part by nonpoint source pollution...In addition, SWIA announced the availability of $3.5 million in state grants available for targeted rural, low-income water, wastewater, and stormwater systems; grant applications are due April 1...Finally, the CWMTF announced it would accept applications until April 7 for grants for innovative stormwater and water restoration projects...EPA's early analysis of new data on the toxicity effects of aluminum on aquatic life suggested that the agency may propose a stricter water quality standard for the metal...The USACE noticed a public comment period through April 6 to accept comment on the proposed Jordan Lake Solar Bee project...In the ongoing High Rock Lake nutrient management strategy effort, EPA finished recalibrating the lake's nutrient response model, which will then be finalized by DWR in the coming months...And DWR will accept comments on the combined Cape Fear-Neuse hydrologic model through April 11.
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