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League Bulletin

March 17, 2015

Nearly two months into the 2015 Long Session, the N.C. General Assembly is up to full speed after snow and ice slowed activity in late February. City officials have jumped into the action and over 450 League members head to Raleigh tomorrow to speak with legislative leaders as part of the League's annual Town Hall Day event.

While legislative attention for environmental issues continued to be dominated by coal ash and hydraulic fracturing, legislative leadership for environmental committees was selected and included:

DENR Transitions

N.C. Department of Environment and Natural Resources (DENR) Secretary Donald van der Vaart has been busy since starting the job at the beginning of the year. With budget constraints, the Secretary indicated to the Senate Committee on Agriculture, Environment, and Natural Resources that DENR's focus will be on enforcement and permitting. In addition, Secretary van der Vaart announced his leadership team and the League looks forward to working with this well-qualified staff, including:

  • John Evans: Chief Deputy Secretary (former DENR General Counsel)
  • Sam Hayes: General Counsel (former attorney with Arnold & Porter, Washington, D.C.)
  • Tom Reeder: Assistant Secretary for Environment (former Director of N.C. Division of Water Resources)
  • Jay Zimmerman: N.C. Division of Water Resources Director (former N.C. Division of Water Resources Section Chief)
  • Matthew T. Dockham: Director of Legislative and Intergovernmental Affairs (former legislative assistant to Sen. Richard Burr, Washington, D.C.)
  • J. Bradford Knott: Deputy Director of Legislative Affairs (dual role; serves also as a legal specialist with N.C. Division of Parks & Recreation)
In other transitions, Governor Pat McCrory named Commissioner Gerard "Jerry" Carroll Chairman of the N.C. Environmental Management Commission (EMC), replacing Benne Hutson who resigned in January. Chairman Carroll was a former senior vice president at National Gypsum in Charlotte and has been a member of the EMC since August 2013. The Governor's state budget suggested other changes, including moving many of the state's attractions currently housed under DENR -- the North Carolina Zoo, and the state aquariums, museums and state parks --  to the N.C. Department of Cultural Resources.

The N.C. Environmental Management Commission (EMC) approved Cary, Apex, Morrisville and Wake County's proposed interbasin transfer (IBT) certificate modification last week after substantial discussion and a presentation from N.C. Division of Water Resources (DWR) staff. An IBT occurs when water is transferred from one river basin to another. Municipalities often initiate IBTs by, for example, withdrawing drinking water from one basin and discharging it as wastewater into another basin.
The Wake towns' and county's certificate modification approval increased the amount of withdrawals from the Haw River Basin to 33 million gallons/day (MGD), an increase from the previously-approved 22 MGD (avg. day max/month). Of the 33 MGD approved to be withdrawn, 31 MGD would be returned to the Neuse River Basin and 2 MGD would be returned to the Cape Fear River Basin. The increase was requested to ensure drinking water supply for estimated population growth to the area.
This action was the first opportunity for the EMC to make findings based on criteria established in S.L. 2013-388, which spelled out the process for such modifications. Specifically, section (k) of the statute required the EMC to consider:
  • The necessity, reasonableness, and beneficial effects of transfer amount
  • Detrimental effects on the source river basin
  • Cumulative effects on the source major river basin of any current or projected water transfer or consumptive water use
  • Detrimental effects on the receiving basin
  • Reasonable alternatives to the proposed transfer
  • Use of impounded storage
  • Purposes and water storage allocations in a U.S. Army Corps of Engineers multipurpose reservoir
  • Compare the water system service area to the locations of both the source and receiving basins
  • Any other facts or circumstances
The factor that received the most discussion by EMC commissioners related to effects on the Cape Fear River Basin. DWR staff found that there would be insignificant cumulative effects on the basin, stating that all downstream demands were met 100 percent of the time for all model scenarios, no shortages would result, and in-stream flow patterns would not be impacted.
During the discussion, EMC commissioners noted that recently-filed legislation -- HB 186 Cape Fear Water Resources Availability Study -- would require the legislative Environmental Review Commission to study the aggregate uses of groundwater and surface water in or affecting the Cape Fear River Basin by all users. Read more coverage of the EMC decision in the News and Observer.

N.C. Division of Water Resources (DWR) continued its work this month on the expansive "periodic review of rules" process mandated by HB 74 Regulatory Reform Act of 2013 by announcing a stakeholder process to assist in the readoption of nearly all of the state's water quality rules.

The N.C. Environmental Management Commission (EMC) promulgates over 1,200 of the state's 23,000+ rules. Included among its 1,200 rules are 273 rules addressing water quality. As part of the legislatively-mandated rule review process, legislators specifically directed a review of these water quality rules first. Those rules included many regulations affecting cities and towns, such as the rules governing wastewater discharges, stormwater programs, buffers, reclaimed water, land application of biosolids, and various nutrient management strategies.

Stakeholder Input to Readoption

With the 2B, 2H, 2T, and 2U water-related rules already through the rule review process and determined to be “necessary with substantive public interest” -- a categorization requiring readoption of the rules -- DWR announced an extensive stakeholder process to assist in preparing any changes to the rules prior to readoption by the EMC. Specifically, DWR scheduled five stakeholder meetings, organized by rule topic and scheduled bi-weekly on Tuesdays between March 24 and May 19. Following these stakeholder meetings, the draft rules will be presented to the EMC in the fall, initiating the formal rulemaking process.

The League contracted with Jay Sauber, a Raleigh-based water quality expert, to assist in assuring positive changes for municipalities in this process. Due to the technical nature of the rules and competing interests of other stakeholders, the expertise offered by Mr. Sauber will be a benefit to all municipalities and was supported by the League's Regulatory Technical Assistance Fund.

The N.C. Division of Water Resources (DWR) announced the members of its Scientific Advisory Council (SAC) -- which included League nominee Dr. Hans Paerl, a scientist experienced in nutrient cycling and effects on aquatic ecosystems -- last month. The SAC will assist in the execution of North Carolina’s Nutrient Criteria Development Plan (NCDP), a roadmap for state regulators to use when developing nutrient management strategies such as the Jordan Lake Rules or Neuse Rules. Because most regulatory costs of addressing nutrient impairment in the state's waters falls to municipalities, the SAC's role in reviewing proposed nutrient criteria is extremely important to North Carolina cities and towns. The first meeting of the SAC will be held on May 6, 2015 at the N.C. Rural Center in Raleigh.

At the suggestion of League members, DWR plans to also create a Criteria Implementation Committee (CIC) that will focus on implementation challenges, and last week the League nominated two members to serve. While the creation of the CIC addressed some of the League's concerns regarding the process of providing expert input on these state regulatory proposals, the League and other stakeholders continued to push for the SAC and CIC to operate together and in consultation with one another. This cooperation is crucial because the SAC's work product will have huge impacts on nutrient regulation implementation costs borne by municipalities.

Nutrient Criteria Development Plan

DWR began developing the NCDP in late 2012, and since then, the Division solicited public comment four times. The League commented on the Plan each of these times. The NCDP is required as part of an agreement between DWR and EPA that outlines a work plan for regulators to use in addressing nutrient impairments across the state. Similar work plans, negotiated for all states receiving EPA funding, contain a description of an agency's tasks, timelines, and milestones for NNC development. The League participated in all previous NCDP efforts and reported extensively on them in previous EcoLINC articles:

With the N.C. General Assembly convening for daily work at the end of January, legislative attention on environment issues continued to be dominated by the two topics that have grabbed headlines for the past several years: coal ash and hydraulic fracturing. However, legislators introduced the following legislation of interest to cities and towns that operated state- and federal-regulated programs:

  • Eminent domain. One of the first bills filed in this year's legislative session would affect the condemnation powers of state and local government. HB 3 Eminent Domain would put a constitutional amendment before voters to restrict the use of eminent domain powers, preventing state and local government from taking land for use by private developers. The bill, filed by Rep. Chuck McGrady and passed by the House with a near-unanimous vote, would also allow property owners to request jury trials in disputes to determine "just compensation" for their property. The House has passed similar bills during previous legislative sessions, but none passed the Senate. Read more in "House Votes Overwhelmingly for Eminent Domain Constitutional Amendment."
  • Land application. The League opposes HB 61 Local Control/Land Application of Biosolids because it would limit land application practices and disrupt well-established law that leaves regulation of biosolids at the state and federal levels. By allowing county boards to dictate how residuals from wastewater utilities are disposed, the bill could prove costly for municipal utilities if they are forced to change their treatment processes. The bill has been refered to the House Local Government Committee, but not yet been heard by the committee.
  • Stormwater flood control. Filed as a statewide bill, but limited in applicability to Mecklenburg County, HB 141 Stormwater/Flood Control Activities would allow a city as part of its stormwater management program, for the purposes of operating a public enterprise, to purchase property for the purpose of demolishing flood‑prone buildings and implement certain flood damage reduction techniques that result in improvements to private property. While written as a statewide bill, the measure would only apply to cities in Mecklenburg County, based on listed population criteria only met by Mecklenburg County.
  • Cape Fear water resource study. HB 186 Cape Fear Water Resources Availability Study would require the legislative Environmental Review Commission to study the aggregate uses of groundwater and surface water in or affecting the Cape Fear River Basin by all users.
  • Dam emergency action plans. Rep. Chuck McGrady offered an amendment to SB 14 Acad. Standards/Rules Review/Coal Ash/Funds Feb. 18 that would extend the deadline from March 1 to Dec. 31 for owners of non-coal-ash, high- and intermediate-risk dams to submit required emergency action plans (EAPs). The full House approved this change earlier this month. However, the Senate failed to concur with the House changes, and the two chambers formed a conference committee to work out differences. Read background on the EAP requirement in "Possible Extension for Dam Reporting Requirement."
  • Special assessments. Sen. Fletcher Hartsell introduced SB 284 Infrastructure Assessments/Repeal Sunset, a bill that would eliminate a July 1 sunset on the authority now granted to local governments to utilize special assessments as a way to pay for infrastructure for new developments. Currently, local governments use this tool, called "special assessment authority," as a way to raise revenue to pay for infrastructure such as roads, curb and gutter, sidewalks, and water and sewer extensions in areas of new development. Read more about this provision here.

DWR gave public notice of its proposed buffer mitigation rule, with the comment period ending April 17...DENR's Stormwater Permitting Program sought feedback on the recently-released Minimum Design Criteria (MDC) for stormwater control measures...DWR also recently created a web-based impaired waters map based on NC's 2014 303(d) list...In addition, DENR announced that a public hearing for the proposed Kerr Lake Regional Water System IBT Certificate will be held on March 31 at the Henderson City Hall...DENR also proposed modifications to existing NPDES wastewater discharge permits and drafted permits for stormwater discharges for the Allen, Marshall and Riverbend coal ash facilities near Charlotte; comments can be submitted until May 5...The Golden LEAF Foundation provided a $500,000 grant to extend St. Pauls' wastewater utilities to an industrial park where Sanderson Farms will build the chicken processing plant...UNC researchers experimented with DNA tests to see whether large-scale hog farms are illegally allowing hog manure to pollute rivers and other surface waters; they also found DNA from bacteria that live in the digestive systems of hogs more frequently downstream of several farms than upstream...EPA approved the Eastern Band of Cherokee Indians (EBCI) to administer a water quality standards program under the CWA, determining that the EBCI is eligible to be treated in a manner similar to a state for setting standards and issuing water quality certifications...EPA gave public notice of its fourth Contaminant Candidate List (CCL 4), a draft list of contaminants that are currently not subject to any drinking water regulations, but are known or anticipated to occur in public water systems and may require future regulation under the SDWA...EPA also announced its final rule for implementing the 2008 ozone national ambient air quality standards (NAAQS) to addresses a range of nonattainment area state implementation plan (SIP) requirements...The City of Rutland, VT filed suit in U.S. District Court to challenge a 2009 EPA-approved TMDL cleanup plan, arguing that EPA exceeded its authority by limiting stormwater flow, reviving the legal debate over whether EPA can use flow as a surrogate for reducing runoff pollution... Attorneys for EPA argued to the 7th Circuit of the U.S. Court of Appeals that a judicially-approved consent decree with a Chicago water district, intended to reduce sewer overflows, did not bar environmentalists from bringing citizen suits for future sanitary sewer overflows.