Legislators started afresh this week after a week-long Independence Day recess. House Rules Chair Rep. David Lewis said the decision to take a break was in keeping with a commitment to allow legislators and staff to spend time with their families during the summer months. They did so without coming to agreement on the state budget, instead adopting a continuing budget resolution that allowed state government to continue operating beyond the July 1 start of the fiscal year. The "CR" provided for state spending through Aug. 14 and came after the House voted not to concur with the Senate's budget plan.
The Senate approved its version of the state budget in June, after the House proposed its version in May, and included a number of proposals that will prove important to municipalities. The Senate plan included substantial changes to tax policy and spends significantly less overall than the House version of the budget. Some key environmental-related provisions of importance to municipalities in the Senate plan included:
In addition, the Senate's budget abolished the Sedimentation Control Commission and turned that state board's responsibility over to the N.C. Environmental Management Commission (EMC). It also eliminated the N.C. Division of Mitigation Services' In-Lieu Fee mitigation programs, a concern to municipalities. Both the public and private sectors use this program to satisfy mandatory compensatory mitigation requirements in state and federal laws and regulations. The mitigation initiatives offset unavoidable environmental damage from transportation infrastructure improvements and other economic development projects, in addition to preventing harmful pollutants from endangering water quality in sensitive river basins. Local governments are concerned that this elimination will increase mitigation costs and slow the projects.
There are substantial differences in the amounts spent in both chambers' budgets. Therefore, most legislative observers believe that the difference in revenue availability, combined with the significant tax and Medicaid proposals included in the Senate budget plan, means budget negotiations will be lengthy.
While the legislature discussed the state budget, Gov. Pat McCrory continued his push for legislative action on a $2.85 billion bond plan to fund state building repairs and renovations as well as road and infrastructure improvements. The governor's plan would support League Municipal Advocacy Goals calling for additional investments in transportation and other infrastructure. On that basis, municipal and county officials from around the state joined in the effort last month, taking part in a news conference at the governor's mansion in late June. There, Governor McCrory noted that there was still time to put the bond issue before voters in November. In response, legislative leaders expressed some interest in a bond proposal to support state building needs, but appeared less enthusiastic about a large transportation borrowing plan.
While the legislature was in recess last week, the EMC met, and along with other business, received updates from N.C. Department of Environment and Natural Resources (DENR) about proposed legislation affecting its various divisions.
Many of the proposals affecting the EMC were contained in the Senate's omnibus regulatory reform proposal, HB 765 Regulatory Reform Act of 2015. The Senate's consideration of that bill sparked a controversy and substantial media coverage regarding DENR's position on the measure. The controversy began when legislators requested input on the bill from the agency. While legislative requests for information from affected state agencies are routine, in making this request for feedback, some committee members noted that DENR actively refused to take a position on this bill as well as earlier omnibus environmental reform bills this session. In response, DENR drafted a memo to legislators that detailed numerous concerns with HB 765, which resulted in several amendments successfully offered on the Senate floor to lessen the negative effects of certain bill provisions. Read more about the complete regulatory reform package and the DENR controversy from WRAL and The News and Observer of Raleigh.
In addition to the regulatory reform discussion, the EMC welcomed a new commissioner at last week's meeting. John D. "JD" Solomon, a professional engineer from Johnson County, was appointed by House Speaker Tim Moore to fill the vacancy of former Commissioner Benne Hutson, who resigned in January. The League looks forward to continuing its working relationship with Commissioner Solomon, who serves as a Vice President for CH2M Hill and also as a member of the State Water Infrastructure Authority.
As May came to a close, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced their final rule to clarify the jurisdictional reach of the Clean Water Act (CWA). The rule text was published in the Federal Register on June 29. As indicated earlier this year, the final rule exempts both stormwater control features (created on dry land) and some ditches from the definition of “waters of the United States.” These changes aligned with a League-approved federal advocacy goal and the League's filed legal comments that called for clarification of the EPA's proposed definition. Specifically, the comments requested the exemption from the rule of man-made ditches and Municipal Separate Storm Sewer Systems (MS4s).
Clean Water Act jurisdiction is an important issue to cities because it triggers CWA regulatory actions, such as permitting, that apply to projects that cities undertake such as road-building and construction of water, wastewater, and stormwater infrastructure.
In the final rule, the ditches exempted from the rule include those:
In regards to stormwater control features, the final rule included a new exclusion for those features constructed to convey, treat, or store stormwater that were created on dry land. EPA stated in its preamble to the rule that “this exclusion responds to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems..." The agency also said it wanted to address confusion around practices in this area, explaining that this approach matched EPA's and the Corps' longstanding view that stormwater control measures not built in "waters of the United States" were non-jurisdictional. Further, to avoid unintentionally limiting the exclusion, the agencies did not include a list of excluded features in the rule. Instead, they stated that the rule's stormwater exclusion language was written broadly to exclude from regulation "the diverse range of control features that are currently in place and may be developed in the future."
One additional exemption in the final rule of interest to municipalities was the exclusion of wastewater recycling structures constructed on dry land. This new exclusion clarified the agencies’ current practice that such waters and features used for water reuse and recycling are not jurisdictional when constructed on dry land. EPA stated that all the exclusions it incorporated into this rule reflected the agencies’ current practices, and the exemptions' inclusion in the rule “furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the CWA."
EPA and the Corps released the long-awaited proposed rule in late March of 2014, stating an intention to clarify which wetlands and smaller waters were considered "waters of the United States" and therefore "jurisdictional," or subject to federal permitting and other regulatory actions. The jurisdiction issue has long been in dispute and uncertain because of competing U.S. Supreme Court tests and conflicting EPA guidance.
The Supreme Court, in Rapanos v. United States, issued a plurality decision in 2006 that set two tests for determining if waters were jurisdictional. The first test holds that only "relatively permanent" waters with a "continuous surface connection" to a traditionally navigable water of the United States can be considered jurisdictional. The second test holds that waters sharing a "significant nexus" with jurisdictional waters can also be regulated under the CWA.
The agencies stated in the proposed rule that the court precedent resulted "in the agencies evaluating the jurisdiction of waters on a case-specific basis far more frequently than is best for clear and efficient implementation of the CWA." The agencies described the lack of clarity resulting from the conflicting court opinions and agency guidance, stating, "This approach results in confusion and uncertainty to the regulated public and results in significant resources being allocated to these determinations by federal and state regulators."
In November, the League filed comments requesting that EPA and the Corps specifically exclude man-made ditches from the definition of “waters of the U.S.," highlighting that municipalities were responsible for implementing many of the CWA's requirements, and therefore, they needed to have a clear understanding of the full effect of any changes to the definition of “waters of the U.S.”
In its comments, the League expressed concern over ambiguity of terms and the proposed rule's effect on MS4s. Specifically, the League commented that EPA did not explicitly exempt many aspects of a MS4 system (ditches, channels, conveyance, etc.), which meant that those features could therefore be considered jurisdictional. If considered jurisdictional, the rule would subject these components of the MS4 system to CWA Section 404 permits, as well as state Water Quality Standards, causing large, unnecessary public expenditures. The League requested that MS4s and their component man-made parts be categorically excluded from the definition of a “waters of the U.S.” because EPA already regulated them under the National Pollutant Discharge Elimination System (NPDES) stormwater permitting program.
Fortunately, the changes made in the final rule aligned with the League's requests for clarification of the EPA's proposed definition and exemptions for man-made ditches and Municipal Separate Storm Sewer Systems (MS4s).
The final rule becomes effective at the end of August. However, the final rule is still highly controversial, as shown by the many lawsuits attacking the rule's validity that publication of the rule triggered. Some parties argued the rule exceeded the agencies' CWA authority and the U.S. Constitution because it rewrote water law, while others argued it violated the Administrative Procedure Act by not giving enough time for public input, or that it violated the National Environmental Policy Act review requirements. In addition, the U.S. House protested the rule in May by passing H.R. 1732, which would force EPA and the Corps to withdraw their current rule defining the scope of the CWA and issue a revised rule after extensive consultation with stakeholders.
This article updates previous EcoLINC coverage of stormwater bills of interest to cities and towns that received additional consideration this legislative session. Clicking on any bill title will take you to the League's bill tracking service, which includes the tracking level for the bill and information on bill status pulled from the N.C. General Assembly website.
Sedimentation Control on Trails Projects. SB 486 NC Trail Expansion/Economic Corridors passed the Senate in May after the League successfully secured an amendment to remove a provision that would prohibit local government regulation of activities related to construction, maintenance, or removal of trails unless required by federal law. That proposed change would have limited the ability of some local governments to comply with sedimentation and stormwater control mandates. In addition to removing that provision, the revised version of the bill included a new proposal to exchange state property located near Umstead State Park in Raleigh with property currently held by the Raleigh-Durham Airport Authority.
This article updates previous EcoLINC coverage of water supply and wastewater measures of interest to cities and towns that received additional consideration this legislative session. Clicking on any bill title will take you to the League's bill tracking service, which includes a tracking level for the bill and information on bill status pulled from the N.C. General Assembly website.
Plastic Pipe Preference. Opposed by the League, SB 397 Open & Fair Competition/Water & Wastewater would prohibit public entities that sought state funding for water, wastewater, or stormwater projects from using their best professional judgment in the selection of piping materials. In doing so, this proposal would override local standards and specifications that have been developed over time based on past experience. Because material selection can be location- and application-sensitive, the League members argued that local conditions and requirements should be the primary factors when considering pipe materials on any project.
While the Senate did not vote on this bill to advance it by the key "crossover" deadline earlier this session, the chamber took two more attempts at moving the provision by including it in various regulatory reform measures. First, the provision appeared in the Senate’s local government regulatory reform package, HB 44 Local Government Regulatory Reform 2015. The League spoke against this provision during its initial committee hearing and successfully secured the removal of that language during the committee discussion. However, within three weeks of that action, the Senate resurrected this provision again, this time in HB 765 Regulatory Reform Act of 2015, which passed that chamber in early July. As included in HB 765, the provision would apply to all water, wastewater, or stormwater projects, not just those for which state funding was used (as in the original SB 397). The League opposes this expanded provision and will continue working with a coalition of stakeholders to prevent its passage in the House.
Local Government Regulatory Reform--Senate. As mentioned above, the Senate approved HB 44 Local Government Regulatory Reform 2015 in June, wide-ranging legislation that would affect local government environmental, zoning, and other land-use regulations. A provision related to permits for a private drinking water well would allow private wells for irrigation or other non-potable purposes in a public drinking water system’s jurisdiction if the well permit stated that the well water would not be interconnected the public water system. Upon receipt of the bill, the House failed to concur with the Senate's proposed omnibus package, so the two chambers will now work out their differences in a conference committee. Both chambers have announced conferees to negotiate agreement on the bill.
This article updates previous EcoLINC coverage of general utility operations bills of interest to cities and towns that received additional consideration this legislative session. Clicking on any bill title will take you to the League's bill tracking service, which includes the tracking level for the bill and information on bill status pulled from the N.C. General Assembly website.
The League, in conjunction with a broad local government advisory group, presented water supply recommendations to top state environmental regulators last week. In collaboration with the North Carolina section of the American Water Works Association - Water Environment Federation (NC AWWA-WEA), the League developed a list of ways to reduce the impediments and challenges to developing water supplies. The group of public water utility experts then publicly presented those recommendations to the N.C. Environmental Management Commission (EMC) Water Allocation Committee, emphasizing that the process of developing water supplies involves complex and lengthy state and federal procedures. The recommendations made clear that there are no easy answers for simplification.
Although the advisory group presented a range of possible solutions, its public presentation focused on two areas in which the EMC could act to ease burdens: (1) "regulated riparianism," or permitted water withdrawal, and (2) Capacity Use Area designations.
In addition, the group also urged the EMC to encourage water planning among river basins, noting that public water utilities recognized a continued need to work together and with the state on water supply and basin issues to make real improvements to conserve water resources.
Finally, the group's last recommendation focused on the committee's next agenda item related to the "Ecological Flows Peer Reviewed Report." The recommendation reiterated that if water supply permitting does not exist in North Carolina, then the EMC should not require a stand-alone ecological flow component setting aside a percentage of a river's flow to maintain aquatic life. The full EMC already took action to prevent the use of generally-applicable ecological flow determinations, voting in September to stop their use in hydrologic models. Hydrologic models simulate the flow of all waters in a river basin, taking into account surface and ground waters, transfers into and out of the basin, other withdrawals, and other data on the flow of water. These calculations can predict which surface water systems will experience future shortages, both during droughts and normal flow times.
After the local water supply group's presentation, Committee chair Commissioner Tommy Craven noted that the Committee would receive a presentation in September regarding groundwater supply issues. He said that he hoped the Committee, after that session, would make a plan of action and recommendations to the full EMC regarding actions the Commission could take to help reduce impediments and challenges to obtaining water supplies.
The State Water Infrastructure Authority (SWIA) announced that twenty-two drinking water and wastewater projects would receive a total of almost $55 million in funding loans and grants from the Clean Water State Revolving Fund and Community Development Block Grant for Infrastructure Programs...In addition, SWIA approved draft changes to the priority rating systems for the funding programs administered by the Division of Water Infrastructure, and the Division is currently seeking public comment on the proposed changes...Forty-three water systems received the N.C. Area Wide Optimization Award from DWR’s Public Water Supply section for surpassing federal and state drinking water standards and demonstrating outstanding turbidity removal...At its July meeting, the EMC voted to adopt the hearing officers' recommendations for the long-awaited consolidated buffer mitigation rule...At that same meeting, after reviewing a peer review of an ecological flow report by the N.C. Ecological Flows Science Advisory Board (EFSAB)--where reviewers determined that the report was well-grounded in current riverine science, had no fundamental flaws, and that the recommendations were credible and defensible--EMC members noted the peer review seemed contradictory since it said the report had no flaws, but also recognized that there were data gaps in regards to headwater streams, coastal plain streams, and larger rivers...Also at its July meeting, the EMC approved the 2014 Tar-Pamlico River Basin Water Resources Plan -- the first of sixteen basin plans to be approved and the first to include both water quantity and quality -- noting that legacy sediments/groundwater pollution and nutrients from poultry operations should be prioritized...Additionally, the EMC confirmed DENR Secretary Donald R. van der Vaart's approval of three reappointments to the Water Pollution Control System Operators Certification Commission, including Troy Perkins from Greenville Utilities Commission...EPA updated its CWA multi-sector general permit for industrial stormwater, replacing the 2008 version of the permit and limiting CWA liability “shield” for entities' discharges that are not specifically authorized in the NPDES permit...In June, EPA released its updated national recommended water quality criteria for human health for 94 chemical pollutants, including agricultural and industrial chemicals...EPA also released its health advisories for two cynotoxins, microcystins and cylindrospermopsin, and included supporting technical documents for the advisories...In addition, EPA sent its final electronic reporting rule for NPDES permits for pre-publication review by OMB and will likely finalize its rule requiring electronic submission of almost all NPDES permitting data by October...A legislative proposal in Pennsylvania could test how private sector technologies can work in water quality trading regimes, referencing manure-to-energy companies as a way to help municipalities meet nutrient discharge limits...The 4th Circuit for the U.S. Court of Appeals ordered new proceedings in a suit testing when compliance with a CWA permit can “shield” dischargers from separate RCRA mandates, giving Baltimore citizens a second chance to argue that construction of a casino on land owned by the city should have been subject to both CWA and RCRA requirements...Meanwhile, the 3rd Circuit for the U.S. COA upheld EPA's multi-state Chesapeake Bay cleanup plan, allowing EPA to limit non-point pollution in TMDLs.