EcoLINC: July 16, 2013
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From: EcoLINC <[email protected]> To: =?utf-8?Q?Wakild _Chuck?= Date: 7/16/2013 11:07:45 AM Subject: EcoLINC:_July_16,_2013 Display this email in your brow ser
No. 18 | NCLM.org | July 16, 2013
IN THIS ISSUE:
EcoLINC: July 16, 2013 NCLM News & Political Report Regulatory Reform Proposals Strike Down Local Authority EMC to See Significant Changes Due to Political Turnover End-of-Session Legislative Bills to Watch League Wins Concessions in Duke Rate Case Regulatory Briefs NCLM & State Government Environmental Meetings and Events
NCLM News & Political Report Going into this past weekend, legislators gave strong signals that they intended to wrap up their session in short order. Tax reform negotiators told reporters they were closer than they'd been in months to reaching a deal, and yesterday, legislative leaders and Governor McCrory announced agreement on a tax reform package ("House, Senate, governor reach tax deal," WRAL). So now, despite the lingering infighting between the two chambers this session, the state budget should fall into place quickly and adjournment will be near. Capitol press reports over the weekend focused on the rushed, frantic pace at the end of session. WRAL reported on how major overhaul measures are introduced during this time and passed with little notice to opponents in "Lack of transparency always a hallmark of NC legislature." The regulatory reform bills discussed below in "Regulatory Reform Proposals Strike Down Local Authority" certainly fit this pattern, and the Charlotte Observer used this exact issue to illustrate the challenges of keeping up with end-of-session changes in "Surprises not surprising near session's end." With so much major policy written on the fly, League staff and members must draw upon 4_28_2014
Page 2 relationships with legislators forged earlier this session to influence the outcome of certain issues. For those interested in how it all shakes out in the end, the League will publish a comprehensive electronic wrap-up that discusses legislation that passed, bills that are still eligible for consideration in the 2014 Short Session, and bills that cannot advance but would have significant impact on municipalities if they did so. State-level environmental policy will continue to be written at the regulatory level even after the legislature leaves Raleigh for the year. This year, for only the second time in modern environmental law history, North Carolina's policy will flow from Republican leadership. (The only other time a Republican governor controlled the agendas of state boards occurred in the 1980s and early 1990s under Governor Jim Martin.) "EMC to See Significant Changes Due to Political Turnover," below, discusses the changes underway and potential workload of the state's main environmental rulemaking body.
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Regulatory Reform Proposals Strike Down Local Authority Both the House and Senate passed regulatory reform bills in the past two weeks that included provisions restricting the decision-making capabilities of municipal officials. While the League appreciates legislators working to lessen the intrusion into local authority in some aspects of these bills, the League remains opposed to provisions that limit local decisions. The two bills contained many other environment-related provisions that impact municipalities, including some that benefitted city operations and programs. Still other ideas appeared in previous regulatory reform bills considered this session. Yet due to the shifting of provisions between various bills, the League does not expect the previous regulatory reform bills to advance. Rather, the two bills discussed below will serve as legislators' regulatory reform vehicles for the 2013 Long Session. These two House and Senate efforts now need only a favorable concurrence vote to be sent to the Governor for his consideration. A vote not to concur on either bill would set up a conference committee process between the two chambers. To kick things off, the Senate has scheduled a concurrence vote on SB 112 Create Jobs Through Regulatory Reform today.
House Regulatory Reform: SB 112 With a little over one day of debate, the House approved a revamped version of SB 112 Create Jobs Through Regulatory Reform last week. City environment ordinance-making restrictions. Throughout multiple debates in that short timeframe, the League worked to improve one provision already approved by the Senate in May that would restrict the ability of cities and towns to pass environment-related ordinances that are more stringent than a corresponding state or federal law. In the final version approved by the House Thursday night, cities would be required to seek approval of these ordinances from the applicable state agency regulating that field, putting city ordinances "in the hands of various state environmental agencies." Cities would not have to justify their ordinances to the satisfaction of agency officials if the ordinance was passed to 4_28_2014
Page 3 address a serious threat to public health, safety, or welfare related to local conditions; a condition necessary to achieve discounted flood insurance rates for that jurisdiction; or was required by a federal law, among other exceptions. The League continues to work with legislators to address this harmful provision. Meanwhile, the development community, which requested this provision, claimed an early victory ("House Passes Landmark Regulatory Reform Package," REBIC blog). Reclaimed water irrigation setbacks. This provision would relax the requirements for setbacks when storing or spraying reclaimed water for irrigation purposes. While the bill recognizes rulemaking must be undertaken to institute these changes, it directs the state to adjust its program according to the bill even prior to completion of that rulemaking. Review of rules. Expanding on an idea first presented in HB 74 Periodic Review and Expiration of Rules earlier this session, this larger regulatory reform package would require state boards to begin an unprecedented effort to review and potentially re-adopt longstanding, existing rules (or face expiration of those rules). The current draft of this bill directs rules related to surface water quality and wetlands to receive the first round of reviews through this new process. Overall, the bill directs the review of every rule in the state administrative code every ten years. The new process would take place in three steps. First, the agency would review all of its rules and make a determination as to whether the rule is necessary with substantial public interest, necessary without substantial public interest, or unnecessary. After that determination, the agency would accept public comment on its judgment. Then, in the second step, the Rules Review Commission (RRC) would review the agency determination and public comment. At this point, the RRC would have the ability to determine whether a rule is necessary with substantial public interest, a judgment that would force re-adoption of the rule. On the other hand, if the RRC concurred in the agency determination that a rule was unnecessary, that rule would expire in this step. Finally, in the third step, a legislative oversight commission would receive the RRC recommendations and have an opportunity to make the final call as to whether a rule should continue in existence, expire, or be re-adopted. Administrative Procedure Act revisions. The bill tweaks the N.C. Administrative Procedures Act, the set of state laws governing rulemaking and other administrative processes. Of note, one revision would raise the limit of what qualifies as a "substantial economic impact" -- the threshold that triggers a need for an agency fiscal note with any rule proposal -- from $500,000 to $1,000,000.
Senate Regulatory Reform: HB 94 The House's quickly-approved regulatory reform bill, discussed above, came in response to an environment-only regulatory reform measure approved by the Senate two weeks ago. Passage of the Senate bill was equally swift. In less than 24 hours, HB 94 Amend Environmental Laws 2013 was approved by one committee and two Senate floor votes. Engineer review of technical designs. Significantly, the Senate approved a floor amendment adding a provision to shift liability for certain development plans from the designing engineer to a professional engineer working on behalf of a municipality, if the city suggests changes to the design that constitute the practice of engineering. This provision limits the discretion of municipal officials who conduct development plan reviews, and it is likely to slow development approvals. An identical provision appeared earlier this session in 4_28_2014
Page 4 SB 612 Regulatory Reform Act of 2013 and would at a minimum apply to municipal review of stormwater, sedimentation/erosion control, water/wastewater system, and transportation designs. The introduction of the provision as a floor amendment prevented any ability to respond before Senate approval of the bill. Hydraulic fracturing chemical disclosure. In response to a proposed (but ultimately withdrawn) rule by the NC Mining & Energy Commission (MEC) that would have imposed some of the nation's strictest chemical disclosure laws for hydraulic fracturing fluid, this bill spells out the handling and protection of such information. Specifically, it prohibits the MEC and the N.C. Department of Environment and Natural Resources (DENR) from possessing any information that constitutes a trade secret. Instead, it only allows disclosure of the chemical constituents in the fluid without the associated quantities. This provision concerns local emergency responders, who may need to know the quantities of various chemicals when responding to spills and other emergencies. No fiscal note for hydraulic fracturing rules. To speed the rulemaking process for hydraulic fracturing rules, this bill would exempt all affected regulatory bodies from the requirement to complete fiscal notes for those sets of rules. Local sedimentation/erosion control appeals. The bill retains one of its original provisions, as recommended by the legislative Environmental Review Commission last fall, to allow cities that operate a delegated sedimentation/erosion control program to hear appeals resulting from a fine or adverse decision by the city. This clarification became necessary when recent changes to the N.C. Administrative Procedures Act left doubts as to whether a local program could hear appeals, versus state Superior Court. Projects on contaminated property. In an improvement on a provision first seen in an earlier version of SB 112 Amend Environmental Laws 2013, the Senate voted to only subject state projects involving contaminated property to approval from the Governor and Council of State. The previous version included municipalities in the process, and given the prevalence of contaminated properties in urban areas, would have given the Council of State a veto over most local government projects, including extensions of water and sewer lines, roads, and buildings. The League thanks the bill sponsor for accepting the League's suggestion to remove local governments from this section of the bill. Brownfields redevelopment. Cities and towns would have more flexibility to enter into development agreements that involve brownfields sites, under a provision included at the request of the City of Wilmington. This provision would remove the requirement that a redevelopment site be at least twenty acres, under certain conditions listed in the bill. Groundwater compliance boundaries. On the heels of a challenged administrative decision regarding groundwater compliance boundaries last fall, the bill directs the N.C. Environmental Management Commission (EMC) to adopt revisions to its groundwater standards rules to clarify procedures related to compliance boundaries. The League supports this legislation, as it would preserve longstanding agency interpretations of compliance boundaries for the practice of land application of biosolids. Gravel is not impervious. This bill adds another concept first seen earlier this session in the Senate's omnibus regulatory reform bill, SB 612 Regulatory Reform Act of 2013. Unlike the provision in SB 612, which specifically redefined "impervious surface" in state law to exclude gravel, this provision arrives at the same result by excluding gravel from the definition of "built-upon area." This redefinition is likely to increase the costs of redevelopment activities as it will stop the practice in most communities of grandfathering gravel-covered surfaces for the purposes of stormwater controls needed for the redeveloped 4_28_2014
Page 5 parcels. Further, in many circumstances, gravel surfaces become impacted and thereafter do not allow water to soak into the ground -- functioning as impervious surface. Legally redefining the nature of how gravel permits filtration could therefore increase stormwater runoff into the state's waters. League members, who are held accountable for water quality impacts of runoff coming from impervious surfaces, do not support this proposed redefinition of "impervious surface." Third-party challenges to water quality permits. This section of the bill clarifies that third parties filing a contested case regarding an EMC decision on a water quality permit would exist only for thirty days after the EMC decision. Repeal pervious parking lot requirements. A section of the N.C. General Statutes that sets permeable pavement standards for uncovered parking lots would be repealed under this bill. This proposed repeal is likely political in nature, as the statutory section in question was added several years ago at the behest of former Democratic President Pro Tempore Marc Basnight. Combine DWR and DWQ. The bulk of the bill's additional length came from this section, which would combine the state Division of Water Resources (DWR) and Division of Water Quality (DWQ) into one agency section, to be called DWR. Most of this section merely changes all statutory references from DWQ to DWR. This change came at the request of DENR and relates to reorganization efforts initiated by Governor McCrory.
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EMC to See Significant Changes Due to Political Turnover With the changeover in political leadership following last fall's elections, the N.C. Environmental Management Commission (EMC) will experience significant changes to its personnel and policy direction. Some of the changes have already begun and include new leadership at the top.
Change in Leadership, Policy Direction Just in time for last week's meeting of the EMC, Governor Pat McCrory appointed current EMC member and Charlotte attorney Benne Hutson as the new Chair of the board. The EMC makes most of the significant environmental regulatory decisions affecting cities and towns, and the League looks forward to a cooperative relationship with Hutson guiding the Commission's agenda. Hutson replaces EMC commissioner Steve Smith as chair; the League is pleased to continue working with Smith, who will serve on the board through the remainder of his term. Just as each governor has the discretion to name people to lead state boards such as the EMC, those people in turn set the policy direction of the boards they lead, in accordance with the administration's goals. To assist in implementing these policy priorities, the EMC chair names various commissioners as chairs of committees. Committees are the first stop for any regulatory proposal and are the place where most policy details are hashed out. Hutson will likely name new chairs to each of the EMC's committees; the most important EMC committees for cities include the Water Quality and Water Allocation committees.
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Change in Membership Personnel changes for the EMC won't stop with the new leadership -- the membership of the board will also rotate in the coming months. While the legislature tussled earlier this session over changes to the make-up and qualifications of persons serving on the EMC, that effort appears stalled. Therefore, in the near term, the Governor will likely make appointments for the five board seats that are currently expired. Already, he has chosen to reappoint Commissioner Kevin Martin, a soil scientist based in Franklinton. The remaining four gubernatorial appointments to this board include one designated for a local government representative that is currently held by Creedmoor Mayor Darryl Moss. While the League has suggested qualified local government candidates for that seat, if Mayor Moss is not reappointed, one possibility is that Valdese Town Manager and current EMC commissioner Jeff Morse could be moved from his current at-large seat over to the designated local government seat. In this scenario, the at-large seat would become freed up for other candidates that do not neatly fit the qualifications of the current open seats on the commission. Those appointments are likely to be announced as soon as the selected candidates complete the required state ethics paperwork, a process which can take several weeks.
Legislative Directives Following a slowdown in rulemaking that resulted from the switch in political party for the executive branch last November, the EMC will likely see an immediate uptick in its workload as a result of directives from the 2013 legislative session:
Review of rules. If SB 112 Create Jobs Through Regulatory Reform passes in its current form, state boards like the EMC will begin an unprecedented effort to review and potentially re-adopt longstanding, existing rules (or face expiration of those rules). The current draft of this bill directs rules related to surface water quality and wetlands to receive the first round of reviews through this new process. This bill must receive, at a minimum, a favorable vote by the full Senate and be presented to the Governor for his consideration before becoming law and affecting the EMC's workload. New rulemakings. The legislature has already tasked the EMC with several new rulemaking actions. Notably for cities, HB 480 Environmental Permitting Reform became law and requires the EMC to place into rules a set of minimum design criteria for various stormwater devices. If a device designer sealed the design as complying with that criteria, the design bypasses state or local technical review and receive automatic approval. And in another effort currently under consideration that would affect cities, SB 515 Jordan Lake Water Quality Act, the EMC would be tasked with adopting certain rules related to the Jordan Lake nutrient management strategy. This bill must still receive favorable votes by the full House and Senate, and then be presented to the Governor for his consideration, before becoming law and affecting the EMC's workload. Separately, the two omnibus regulatory reform bills, if passed in their current forms, would direct specific EMC rulemakings as well. The House regulatory reform package, SB 112 Create Jobs Through Regulatory Reform, would require the Commission to adopt rules loosening the requirements for setbacks when storing or spraying reclaimed water for irrigation purposes. And finally, HB 94 Amend 4_28_2014
Page 7 Environmental Laws 2013 directs the EMC to adopt revisions to its groundwater standards rules to clarify procedures related to compliance boundaries, an effort supported by the League.
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End-of-Session Legislative Bills to Watch As the N.C. General Assembly enters its final push toward adjournment, several environment bills affecting cities and towns are still in play. We list those bills below by topic area. Once the legislature officially adjourns, the League will publish a comprehensive wrap-up of environment bills of interest to municipalities from the 2013 Long Session.
Water Interbasin transfer. An amended SB 341 Amend Interbasin Transfer Law, a multi-faceted bill that makes incremental changes to the state's interbasin transfer (IBT) laws, received approval by the House Environment Committee last month (read background on the bill's content in this League report). In a change from previous versions of the bill, the committee agreed to cap a daily IBT withdrawal at three million gallons/day; previous versions of the bill capped the daily withdrawal at five million gallons/day. So far, the IBT provisions of the bill have stirred little controversy. The House calendared the bill for a vote today. If approved, it would need only a favorable concurrence vote by the full Senate before being sent to the Governor for his consideration. Backflow prevention device installation. After both legislative chambers passed substantially different versions of HB 662 Limited License/Install Backflow Assemblies earlier this session, each chamber approved a compromise measure last week, sending the bill to the Governor for his consideration. The compromise measure does not differ too dramatically from the version passed by the Senate, which would allow the State Board of Examiners of Plumbing, Heating, and Fire Sprinklers Contractors to issue a limited license to qualifying persons to install and service backflow prevention assemblies. More background on this bill is available in last month's EcoLINC.
Stormwater Jordan Lake Rules revisions. Considering the third iteration of SB 515 Jordan Lake Water Quality Act Thursday, the House Environment Committee discussed the bill for a half hour and ultimately approved the measure, sending it on for a full House debate. Senate bill sponsors were joined by House members who represent Triad-area communities upstream from the lake in presenting the revised bill language. As in previous debates, the bill sponsors focused on the negative economic impacts the Rules have had on development in upstream communities. They also stated that the Rules as written had not improved water quality in the lake, and therefore, an alternate clean-up approach should be considered. They presented this version of the bill as a compromise between the Senate, which had wanted an outright repeal of the Rules earlier this session, and the House. In its current 4_28_2014
Page 8 form, the bill would delay implementation of those portions of the Rules that had not yet been implemented -- such as the existing development rules -- until July 2016. During the committee discussion, bill sponsors also said the measure was intended to be complemented by two other efforts. The first, according to the bill sponsors, was a study of buoy technology that was touted as a way to purify the lake water; another complementary measure would authorize a legislative study of measures to improve water quality in the lake. Some committee members voted against the measure, stating their opposition to the anticipated technology study -- which was not part of the bill being debated -- being expected to draw away $2 million from the already-reduced funds in the Clean Water Management Trust Fund (read more in this WRAL report). Once it is reported out of committee, the bill next heads for a full House vote. If approved, the Senate would need only to vote to concur with this new language; then, the bill would be sent to the Governor for his consideration.
Wastewater Land application of biosolids. The Senate voted unanimously to concur with SB 372 Omnibus County Legislation last night, sending the bill to the Governor for his consideration. The bill includes a provision that would require the state and local governments to give boards of county commissioners notice and opportunity to comment if land application of biosolids had been proposed in their county. This version of the bill also contains language suggested by the League to clarify that the notice requirement is triggered only with a proposal to land apply Class B biosolids, an interpretation previously made by state agency staff (read more background in the May edition of EcoLINC). The League is not opposed to this specific proposal but would oppose any legislation giving local governments such as counties the ability to prevent the land application of biosolids. League members prioritized limiting regulation in that area to the state and federal governments as a regulatory advocacy goal.
Utility Operations Underground Damage Prevention Act rewrite. Both the House and Senate took actions to modify and approve changes to HB 476 Rewrite Underground Damage Prevention Act in the past month. The bill is a comprehensive overhaul of the state's underground digging laws, also known as the "811" laws named after the "call before you dig" phone number excavators must dial to notify utilities of planned digging activities. The most recent changes to the bill concern the process by which the bill's provisions would be enforced. The latest version assigns enforcement responsibility to a newly-created Underground Damage Prevention Review Board. This board would include a representative designated by the League and would receive and consider dispute claims. The bill also sets up appeal of those claims to the N.C. Utilities Commission, which also would take ultimate responsibility for assessing penalties for violations of the laws. The League has been very involved in development of this legislation; read more in the May edition of EcoLINC. Because it has a finance component, the bill heads to the Senate Finance Committee today, its last stop before the Senate floor. If approved by the committee and then the full Senate, the bill would 4_28_2014
Page 9 only need a concurrence vote by the full House to be sent to the Governor for his consideration. Design-build and public-private partnerships. After being approved by a first Senate committee last month, HB 857 Public Contracts/Construction Methods/DB/P3 needs only a favorable vote from the Senate Finance Committee (scheduled for today) before heading for a full Senate vote. The bill would give all local governments the ability to utilize the designbuild construction method and public-private partnership financing. The League continues to work with the bill sponsor to improve this bill. Read more details about the bill and its legislative history in last month's EcoLINC. Asheville water system transfer, Part II. With little notice to the Senate bill sponsors, House leaders inserted a provision into SB 341 Amend Interbasin Transfer Law that would amend the previously-passed law to transfer the City of Asheville's water system to a metropolitan sewerage district. The move occurred during the House Environment Committee debate last month. The provision, an effort to bolster the state's legal case in the lawsuit filed by the City of Asheville in response to the passage of HB 488 Regionalization of Public Utilities, would have ensnared the Greenville water and wastewater system in the same transfer scheme that applied to Asheville. When passed, HB 488 included a provision limiting its application only to public water systems that had not been issued an interbasin transfer (IBT) certificate. The new version of the IBT bill would eliminate that provision from law, thereby threatening future municipal control of utilities around the state, such as Greenville's. The League opposed the provision and worked with legislators to remove an identical provision from yet another bill to which it was attached earlier this month. However, the provision remains in SB 341. The House originally calendared the bill for a vote today, but that vote was subsequently rescheduled for tomorrow. If approved, it would need only a favorable concurrence vote by the full Senate before being sent to the Governor for his consideration. During floor debate the League expects legislators to delete this specific provision and possibly attempt another statutory mechanism to boost the state's legal arguments in the Asheville water system lawsuit. Mandatory extension of water/sewer lines. The House gave its final approval last week to SB 315 Municipal Services, a statewide bill targeted at requiring the City of Durham to provide water and sewer service to the 751 South development near Jordan Lake (read about the history of this project and the bill in last month's EcoLINC). The bill, which would also legislatively annex the development property into the City of Durham in 2023, is in effect for only 60 days after passage, limiting wide application of the legislation. Even so, the League opposes legislative decisions regarding the provision of local services. Representatives offered amendments to the bill during the House debate, including one requiring the developers of the property to report on their job creation efforts, but legislative maneuvering prevented any of those amendments from being voted on directly. The full Senate has rescheduled a vote on this bill three times, with the latest vote scheduled for today. If the Senate approves the bill, it would go to the Governor for his consideration.
Studies The omnibus studies bill is an annual legislative tradition at the end of session. This year, the League anticipates the following topics to be included in the final bill, among others: Jordan Lake Rules clean-up. As referenced above under "Stormwater," legislators intend 4_28_2014
Page 10 two studies related to the Jordan Lake Rules: one related to lake clean-up technology, the other more generally studying other ways to clean up the lake. Water/sewer entities. The version of SB 112 Create Jobs Through Regulatory Reform passed by the House last week includes a study of water and sewer districts. The language in SB 112 is identical to that of HB 814 Study Water & Sewer Districts. The provision would direct an interim legislative study of the various statutory models under which water and sewer is provided in the state, investigating the operations and financing of each type of model. The bill authorizes the study to make recommendations for reducing or consolidating such models of service provision. The models that would be studied include: sanitary districts, water and sewer authorities, metropolitan water districts, metropolitan sewerage districts, county water and sewer districts, and any other similar organizations.
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League Wins Concessions in Duke Rate Case The League presented its case, questioned witnesses, and gained concessions in the Duke Energy Carolinas rate increase hearing before the North Carolina Utilities Commission (NCUC) last week. The League's intervention in this case is supported by the over 100 League members who belong to the NC Municipal Energy Group; read more about the efforts supported by this group.
Lower Rates for Water, Wastewater Facilities As a result of the League’s and other groups’ interventions in the case, Duke agreed last month to cut its rate request in half; read details in this article from last month's EcoLINC. That agreement also included two other rate-related concessions that, should they be incorporated into the NCUC's Final Order later this fall, would further reduce rates for the user categories that include water and wastewater utilities. Adding to these earlier commitments, during last week's hearing, the League and other intervenors pressed Duke toward another major concession that would result in a lower rate for water and wastewater facilities. This request involved a request to consolidate two rates, OPT-I and OPT-G. Under cross-examination, a Duke witness testified that the utility would consider a separate proceeding to redesign these two rates. If the utility redesigned the rate as requested, water and wastewater facilities would be able to take advantage of a more favorable OPT rate, especially if that redesign was based on voltage or load factor. To support its arguments for consolidated rates, the League presented two witnesses as a panel. Along with their statements regarding the OPT rate consolidation, their testimony also included a request for more time-of-use options for utilities. If allowed by the NCUC, time-of-use options would assist utilities in managing their energy costs by rewarding utilities for shifting their intense energy use to off-peak times.
Testimony on LED Street Light Rates In addition, under cross-examination by the League at the hearing, the utility committed to devising an LED street lighting schedule by the end of the year. On this issue, NCUC Commissioner ToNola 4_28_2014
Page 11 Brown Bland -- a former Greensboro assistant city attorney -- specifically highlighted municipal leaders’ comments at public hearings held throughout the state over the past two months. She noted that without an LED rate schedule, cities in the Duke service area were precluded from making the most efficient use of electricity. As a result of this exchange, both the NCUC and Duke appeared open to setting a more specific timetable for an LED lighting schedule. Though Duke did not commit to any specific rate schedule features, under cross-examination, Duke’s witness moved from “hoping” to have an LED lighting schedule by the end of the year to “willing to commit” to that timeline. In this portion of the hearing, the League presented one witness in support of LED lighting schedules. This testimony emphasized that irrespective of the fact that Duke had committed to filing an LED rate schedule, there was a difference between a schedule that involved a single rate for LED street lights and one that involved two options, such as that offered by Duke sister company Duke Progress Carolinas. Having two options, the League witness stated, would give municipalities the necessary flexibility to make installation of LED lighting economically feasible.
Ongoing Discussions Between League, Duke Finally, in its hearing testimony, Duke indicated it would be willing to engage in a forum that would meet at least semi-annually with municipal officials and the NCUC Public Staff to discuss and clarify municipal concerns, such as electronic data interchange (EDI) billing. With the hearing concluded, each intervening party now has an opportunity to submit a post-hearing brief to make further arguments and solidify positions litigated at the hearing. Then, the NCUC will likely issue a final order in this case in the fall.
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Regulatory Briefs The Rules Review Commission objected to (pg. 18-19) certain parts of the flexible buffer mitigation rules, sending those particular rules back to the EMC for refinement and re-adoption...Environmental interests refused to agree to further extensions for the long-awaited national EPA stormwater rulemaking last month, forcing the agency into a 60-day dispute mediation process...DWQ will accept public comment until the end of the month on a new general permit that would allow de minimus discharges of reclaimed water, either from overspraying while irrigating or overflow from storage ponds during rain events...The state also streamlined its process for issuing authorization to construct permits for wastewater treatment plant designs, including update minimum design criteria...U.S. Senate leader Harry Reid announced he will move forward with a confirmation vote on Gina McCarthy for EPA Administrator this week, ending a block on her appointment that has been in place for most of this year...State officials revised the sedimentation and erosion control planning and design manual, updating eight standards...State water resources officials confirmed that they will conduct a public comment period on the recommendations of the Ecological Flows Scientific Advisory Board when the Board concludes its work this fall...White House approval of EPA's NPDES electronic reporting rule clears the way for release of the rule language later this month.
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NCLM & State Government Environmental Meetings and Events Ecological Flows Science Advisory Board, July 16 & 17, 9:00 am, Stan Adams Training Center at Jordan Lake, Chapel Hill Mining & Energy Commission Local Government Regulation Study Group, July 19, 1:00 pm, Archdale Building 5th Floor Conference Room, Raleigh Mining & Energy Commission committee meetings, July 25, 9:00 am, Archdale Building Ground Floor Hearing Room, Raleigh Mining & Energy Commission, July 26, 9:00 am, Archdale Building Ground Floor Hearing Room, Raleigh Mining & Energy Commission Funding Levels Study Group, July 30, 2:30 pm, Archdale Building 5th Floor Conference Room, Raleigh Nutrient Science Advisory Board, August 2, 9:30 am, Durham Water Reclamation Facility, 1900 East Club Boulevard, Durham Mining & Energy Commission, August 9, 9:00 am, Archdale Building Ground Floor Hearing Room, Raleigh Sedimentation Control Commission, August 15, 10:00 am, Archdale Building Ground Floor Hearing Room, Raleigh State Water Infrastructure Commission, August 16, 10:00 am, Green Square, Raleigh
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From: EcoLINC <[email protected]> To: =?utf-8?Q?Wakild _Chuck?= Date: 7/16/2013 11:07:45 AM Subject: EcoLINC:_July_16,_2013 Display this email in your brow ser
No. 18 | NCLM.org | July 16, 2013
IN THIS ISSUE:
EcoLINC: July 16, 2013 NCLM News & Political Report Regulatory Reform Proposals Strike Down Local Authority EMC to See Significant Changes Due to Political Turnover End-of-Session Legislative Bills to Watch League Wins Concessions in Duke Rate Case Regulatory Briefs NCLM & State Government Environmental Meetings and Events
NCLM News & Political Report Going into this past weekend, legislators gave strong signals that they intended to wrap up their session in short order. Tax reform negotiators told reporters they were closer than they'd been in months to reaching a deal, and yesterday, legislative leaders and Governor McCrory announced agreement on a tax reform package ("House, Senate, governor reach tax deal," WRAL). So now, despite the lingering infighting between the two chambers this session, the state budget should fall into place quickly and adjournment will be near. Capitol press reports over the weekend focused on the rushed, frantic pace at the end of session. WRAL reported on how major overhaul measures are introduced during this time and passed with little notice to opponents in "Lack of transparency always a hallmark of NC legislature." The regulatory reform bills discussed below in "Regulatory Reform Proposals Strike Down Local Authority" certainly fit this pattern, and the Charlotte Observer used this exact issue to illustrate the challenges of keeping up with end-of-session changes in "Surprises not surprising near session's end." With so much major policy written on the fly, League staff and members must draw upon 4_28_2014
Page 2 relationships with legislators forged earlier this session to influence the outcome of certain issues. For those interested in how it all shakes out in the end, the League will publish a comprehensive electronic wrap-up that discusses legislation that passed, bills that are still eligible for consideration in the 2014 Short Session, and bills that cannot advance but would have significant impact on municipalities if they did so. State-level environmental policy will continue to be written at the regulatory level even after the legislature leaves Raleigh for the year. This year, for only the second time in modern environmental law history, North Carolina's policy will flow from Republican leadership. (The only other time a Republican governor controlled the agendas of state boards occurred in the 1980s and early 1990s under Governor Jim Martin.) "EMC to See Significant Changes Due to Political Turnover," below, discusses the changes underway and potential workload of the state's main environmental rulemaking body.
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Regulatory Reform Proposals Strike Down Local Authority Both the House and Senate passed regulatory reform bills in the past two weeks that included provisions restricting the decision-making capabilities of municipal officials. While the League appreciates legislators working to lessen the intrusion into local authority in some aspects of these bills, the League remains opposed to provisions that limit local decisions. The two bills contained many other environment-related provisions that impact municipalities, including some that benefitted city operations and programs. Still other ideas appeared in previous regulatory reform bills considered this session. Yet due to the shifting of provisions between various bills, the League does not expect the previous regulatory reform bills to advance. Rather, the two bills discussed below will serve as legislators' regulatory reform vehicles for the 2013 Long Session. These two House and Senate efforts now need only a favorable concurrence vote to be sent to the Governor for his consideration. A vote not to concur on either bill would set up a conference committee process between the two chambers. To kick things off, the Senate has scheduled a concurrence vote on SB 112 Create Jobs Through Regulatory Reform today.
House Regulatory Reform: SB 112 With a little over one day of debate, the House approved a revamped version of SB 112 Create Jobs Through Regulatory Reform last week. City environment ordinance-making restrictions. Throughout multiple debates in that short timeframe, the League worked to improve one provision already approved by the Senate in May that would restrict the ability of cities and towns to pass environment-related ordinances that are more stringent than a corresponding state or federal law. In the final version approved by the House Thursday night, cities would be required to seek approval of these ordinances from the applicable state agency regulating that field, putting city ordinances "in the hands of various state environmental agencies." Cities would not have to justify their ordinances to the satisfaction of agency officials if the ordinance was passed to 4_28_2014
Page 3 address a serious threat to public health, safety, or welfare related to local conditions; a condition necessary to achieve discounted flood insurance rates for that jurisdiction; or was required by a federal law, among other exceptions. The League continues to work with legislators to address this harmful provision. Meanwhile, the development community, which requested this provision, claimed an early victory ("House Passes Landmark Regulatory Reform Package," REBIC blog). Reclaimed water irrigation setbacks. This provision would relax the requirements for setbacks when storing or spraying reclaimed water for irrigation purposes. While the bill recognizes rulemaking must be undertaken to institute these changes, it directs the state to adjust its program according to the bill even prior to completion of that rulemaking. Review of rules. Expanding on an idea first presented in HB 74 Periodic Review and Expiration of Rules earlier this session, this larger regulatory reform package would require state boards to begin an unprecedented effort to review and potentially re-adopt longstanding, existing rules (or face expiration of those rules). The current draft of this bill directs rules related to surface water quality and wetlands to receive the first round of reviews through this new process. Overall, the bill directs the review of every rule in the state administrative code every ten years. The new process would take place in three steps. First, the agency would review all of its rules and make a determination as to whether the rule is necessary with substantial public interest, necessary without substantial public interest, or unnecessary. After that determination, the agency would accept public comment on its judgment. Then, in the second step, the Rules Review Commission (RRC) would review the agency determination and public comment. At this point, the RRC would have the ability to determine whether a rule is necessary with substantial public interest, a judgment that would force re-adoption of the rule. On the other hand, if the RRC concurred in the agency determination that a rule was unnecessary, that rule would expire in this step. Finally, in the third step, a legislative oversight commission would receive the RRC recommendations and have an opportunity to make the final call as to whether a rule should continue in existence, expire, or be re-adopted. Administrative Procedure Act revisions. The bill tweaks the N.C. Administrative Procedures Act, the set of state laws governing rulemaking and other administrative processes. Of note, one revision would raise the limit of what qualifies as a "substantial economic impact" -- the threshold that triggers a need for an agency fiscal note with any rule proposal -- from $500,000 to $1,000,000.
Senate Regulatory Reform: HB 94 The House's quickly-approved regulatory reform bill, discussed above, came in response to an environment-only regulatory reform measure approved by the Senate two weeks ago. Passage of the Senate bill was equally swift. In less than 24 hours, HB 94 Amend Environmental Laws 2013 was approved by one committee and two Senate floor votes. Engineer review of technical designs. Significantly, the Senate approved a floor amendment adding a provision to shift liability for certain development plans from the designing engineer to a professional engineer working on behalf of a municipality, if the city suggests changes to the design that constitute the practice of engineering. This provision limits the discretion of municipal officials who conduct development plan reviews, and it is likely to slow development approvals. An identical provision appeared earlier this session in 4_28_2014
Page 4 SB 612 Regulatory Reform Act of 2013 and would at a minimum apply to municipal review of stormwater, sedimentation/erosion control, water/wastewater system, and transportation designs. The introduction of the provision as a floor amendment prevented any ability to respond before Senate approval of the bill. Hydraulic fracturing chemical disclosure. In response to a proposed (but ultimately withdrawn) rule by the NC Mining & Energy Commission (MEC) that would have imposed some of the nation's strictest chemical disclosure laws for hydraulic fracturing fluid, this bill spells out the handling and protection of such information. Specifically, it prohibits the MEC and the N.C. Department of Environment and Natural Resources (DENR) from possessing any information that constitutes a trade secret. Instead, it only allows disclosure of the chemical constituents in the fluid without the associated quantities. This provision concerns local emergency responders, who may need to know the quantities of various chemicals when responding to spills and other emergencies. No fiscal note for hydraulic fracturing rules. To speed the rulemaking process for hydraulic fracturing rules, this bill would exempt all affected regulatory bodies from the requirement to complete fiscal notes for those sets of rules. Local sedimentation/erosion control appeals. The bill retains one of its original provisions, as recommended by the legislative Environmental Review Commission last fall, to allow cities that operate a delegated sedimentation/erosion control program to hear appeals resulting from a fine or adverse decision by the city. This clarification became necessary when recent changes to the N.C. Administrative Procedures Act left doubts as to whether a local program could hear appeals, versus state Superior Court. Projects on contaminated property. In an improvement on a provision first seen in an earlier version of SB 112 Amend Environmental Laws 2013, the Senate voted to only subject state projects involving contaminated property to approval from the Governor and Council of State. The previous version included municipalities in the process, and given the prevalence of contaminated properties in urban areas, would have given the Council of State a veto over most local government projects, including extensions of water and sewer lines, roads, and buildings. The League thanks the bill sponsor for accepting the League's suggestion to remove local governments from this section of the bill. Brownfields redevelopment. Cities and towns would have more flexibility to enter into development agreements that involve brownfields sites, under a provision included at the request of the City of Wilmington. This provision would remove the requirement that a redevelopment site be at least twenty acres, under certain conditions listed in the bill. Groundwater compliance boundaries. On the heels of a challenged administrative decision regarding groundwater compliance boundaries last fall, the bill directs the N.C. Environmental Management Commission (EMC) to adopt revisions to its groundwater standards rules to clarify procedures related to compliance boundaries. The League supports this legislation, as it would preserve longstanding agency interpretations of compliance boundaries for the practice of land application of biosolids. Gravel is not impervious. This bill adds another concept first seen earlier this session in the Senate's omnibus regulatory reform bill, SB 612 Regulatory Reform Act of 2013. Unlike the provision in SB 612, which specifically redefined "impervious surface" in state law to exclude gravel, this provision arrives at the same result by excluding gravel from the definition of "built-upon area." This redefinition is likely to increase the costs of redevelopment activities as it will stop the practice in most communities of grandfathering gravel-covered surfaces for the purposes of stormwater controls needed for the redeveloped 4_28_2014
Page 5 parcels. Further, in many circumstances, gravel surfaces become impacted and thereafter do not allow water to soak into the ground -- functioning as impervious surface. Legally redefining the nature of how gravel permits filtration could therefore increase stormwater runoff into the state's waters. League members, who are held accountable for water quality impacts of runoff coming from impervious surfaces, do not support this proposed redefinition of "impervious surface." Third-party challenges to water quality permits. This section of the bill clarifies that third parties filing a contested case regarding an EMC decision on a water quality permit would exist only for thirty days after the EMC decision. Repeal pervious parking lot requirements. A section of the N.C. General Statutes that sets permeable pavement standards for uncovered parking lots would be repealed under this bill. This proposed repeal is likely political in nature, as the statutory section in question was added several years ago at the behest of former Democratic President Pro Tempore Marc Basnight. Combine DWR and DWQ. The bulk of the bill's additional length came from this section, which would combine the state Division of Water Resources (DWR) and Division of Water Quality (DWQ) into one agency section, to be called DWR. Most of this section merely changes all statutory references from DWQ to DWR. This change came at the request of DENR and relates to reorganization efforts initiated by Governor McCrory.
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EMC to See Significant Changes Due to Political Turnover With the changeover in political leadership following last fall's elections, the N.C. Environmental Management Commission (EMC) will experience significant changes to its personnel and policy direction. Some of the changes have already begun and include new leadership at the top.
Change in Leadership, Policy Direction Just in time for last week's meeting of the EMC, Governor Pat McCrory appointed current EMC member and Charlotte attorney Benne Hutson as the new Chair of the board. The EMC makes most of the significant environmental regulatory decisions affecting cities and towns, and the League looks forward to a cooperative relationship with Hutson guiding the Commission's agenda. Hutson replaces EMC commissioner Steve Smith as chair; the League is pleased to continue working with Smith, who will serve on the board through the remainder of his term. Just as each governor has the discretion to name people to lead state boards such as the EMC, those people in turn set the policy direction of the boards they lead, in accordance with the administration's goals. To assist in implementing these policy priorities, the EMC chair names various commissioners as chairs of committees. Committees are the first stop for any regulatory proposal and are the place where most policy details are hashed out. Hutson will likely name new chairs to each of the EMC's committees; the most important EMC committees for cities include the Water Quality and Water Allocation committees.
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Change in Membership Personnel changes for the EMC won't stop with the new leadership -- the membership of the board will also rotate in the coming months. While the legislature tussled earlier this session over changes to the make-up and qualifications of persons serving on the EMC, that effort appears stalled. Therefore, in the near term, the Governor will likely make appointments for the five board seats that are currently expired. Already, he has chosen to reappoint Commissioner Kevin Martin, a soil scientist based in Franklinton. The remaining four gubernatorial appointments to this board include one designated for a local government representative that is currently held by Creedmoor Mayor Darryl Moss. While the League has suggested qualified local government candidates for that seat, if Mayor Moss is not reappointed, one possibility is that Valdese Town Manager and current EMC commissioner Jeff Morse could be moved from his current at-large seat over to the designated local government seat. In this scenario, the at-large seat would become freed up for other candidates that do not neatly fit the qualifications of the current open seats on the commission. Those appointments are likely to be announced as soon as the selected candidates complete the required state ethics paperwork, a process which can take several weeks.
Legislative Directives Following a slowdown in rulemaking that resulted from the switch in political party for the executive branch last November, the EMC will likely see an immediate uptick in its workload as a result of directives from the 2013 legislative session:
Review of rules. If SB 112 Create Jobs Through Regulatory Reform passes in its current form, state boards like the EMC will begin an unprecedented effort to review and potentially re-adopt longstanding, existing rules (or face expiration of those rules). The current draft of this bill directs rules related to surface water quality and wetlands to receive the first round of reviews through this new process. This bill must receive, at a minimum, a favorable vote by the full Senate and be presented to the Governor for his consideration before becoming law and affecting the EMC's workload. New rulemakings. The legislature has already tasked the EMC with several new rulemaking actions. Notably for cities, HB 480 Environmental Permitting Reform became law and requires the EMC to place into rules a set of minimum design criteria for various stormwater devices. If a device designer sealed the design as complying with that criteria, the design bypasses state or local technical review and receive automatic approval. And in another effort currently under consideration that would affect cities, SB 515 Jordan Lake Water Quality Act, the EMC would be tasked with adopting certain rules related to the Jordan Lake nutrient management strategy. This bill must still receive favorable votes by the full House and Senate, and then be presented to the Governor for his consideration, before becoming law and affecting the EMC's workload. Separately, the two omnibus regulatory reform bills, if passed in their current forms, would direct specific EMC rulemakings as well. The House regulatory reform package, SB 112 Create Jobs Through Regulatory Reform, would require the Commission to adopt rules loosening the requirements for setbacks when storing or spraying reclaimed water for irrigation purposes. And finally, HB 94 Amend 4_28_2014
Page 7 Environmental Laws 2013 directs the EMC to adopt revisions to its groundwater standards rules to clarify procedures related to compliance boundaries, an effort supported by the League.
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End-of-Session Legislative Bills to Watch As the N.C. General Assembly enters its final push toward adjournment, several environment bills affecting cities and towns are still in play. We list those bills below by topic area. Once the legislature officially adjourns, the League will publish a comprehensive wrap-up of environment bills of interest to municipalities from the 2013 Long Session.
Water Interbasin transfer. An amended SB 341 Amend Interbasin Transfer Law, a multi-faceted bill that makes incremental changes to the state's interbasin transfer (IBT) laws, received approval by the House Environment Committee last month (read background on the bill's content in this League report). In a change from previous versions of the bill, the committee agreed to cap a daily IBT withdrawal at three million gallons/day; previous versions of the bill capped the daily withdrawal at five million gallons/day. So far, the IBT provisions of the bill have stirred little controversy. The House calendared the bill for a vote today. If approved, it would need only a favorable concurrence vote by the full Senate before being sent to the Governor for his consideration. Backflow prevention device installation. After both legislative chambers passed substantially different versions of HB 662 Limited License/Install Backflow Assemblies earlier this session, each chamber approved a compromise measure last week, sending the bill to the Governor for his consideration. The compromise measure does not differ too dramatically from the version passed by the Senate, which would allow the State Board of Examiners of Plumbing, Heating, and Fire Sprinklers Contractors to issue a limited license to qualifying persons to install and service backflow prevention assemblies. More background on this bill is available in last month's EcoLINC.
Stormwater Jordan Lake Rules revisions. Considering the third iteration of SB 515 Jordan Lake Water Quality Act Thursday, the House Environment Committee discussed the bill for a half hour and ultimately approved the measure, sending it on for a full House debate. Senate bill sponsors were joined by House members who represent Triad-area communities upstream from the lake in presenting the revised bill language. As in previous debates, the bill sponsors focused on the negative economic impacts the Rules have had on development in upstream communities. They also stated that the Rules as written had not improved water quality in the lake, and therefore, an alternate clean-up approach should be considered. They presented this version of the bill as a compromise between the Senate, which had wanted an outright repeal of the Rules earlier this session, and the House. In its current 4_28_2014
Page 8 form, the bill would delay implementation of those portions of the Rules that had not yet been implemented -- such as the existing development rules -- until July 2016. During the committee discussion, bill sponsors also said the measure was intended to be complemented by two other efforts. The first, according to the bill sponsors, was a study of buoy technology that was touted as a way to purify the lake water; another complementary measure would authorize a legislative study of measures to improve water quality in the lake. Some committee members voted against the measure, stating their opposition to the anticipated technology study -- which was not part of the bill being debated -- being expected to draw away $2 million from the already-reduced funds in the Clean Water Management Trust Fund (read more in this WRAL report). Once it is reported out of committee, the bill next heads for a full House vote. If approved, the Senate would need only to vote to concur with this new language; then, the bill would be sent to the Governor for his consideration.
Wastewater Land application of biosolids. The Senate voted unanimously to concur with SB 372 Omnibus County Legislation last night, sending the bill to the Governor for his consideration. The bill includes a provision that would require the state and local governments to give boards of county commissioners notice and opportunity to comment if land application of biosolids had been proposed in their county. This version of the bill also contains language suggested by the League to clarify that the notice requirement is triggered only with a proposal to land apply Class B biosolids, an interpretation previously made by state agency staff (read more background in the May edition of EcoLINC). The League is not opposed to this specific proposal but would oppose any legislation giving local governments such as counties the ability to prevent the land application of biosolids. League members prioritized limiting regulation in that area to the state and federal governments as a regulatory advocacy goal.
Utility Operations Underground Damage Prevention Act rewrite. Both the House and Senate took actions to modify and approve changes to HB 476 Rewrite Underground Damage Prevention Act in the past month. The bill is a comprehensive overhaul of the state's underground digging laws, also known as the "811" laws named after the "call before you dig" phone number excavators must dial to notify utilities of planned digging activities. The most recent changes to the bill concern the process by which the bill's provisions would be enforced. The latest version assigns enforcement responsibility to a newly-created Underground Damage Prevention Review Board. This board would include a representative designated by the League and would receive and consider dispute claims. The bill also sets up appeal of those claims to the N.C. Utilities Commission, which also would take ultimate responsibility for assessing penalties for violations of the laws. The League has been very involved in development of this legislation; read more in the May edition of EcoLINC. Because it has a finance component, the bill heads to the Senate Finance Committee today, its last stop before the Senate floor. If approved by the committee and then the full Senate, the bill would 4_28_2014
Page 9 only need a concurrence vote by the full House to be sent to the Governor for his consideration. Design-build and public-private partnerships. After being approved by a first Senate committee last month, HB 857 Public Contracts/Construction Methods/DB/P3 needs only a favorable vote from the Senate Finance Committee (scheduled for today) before heading for a full Senate vote. The bill would give all local governments the ability to utilize the designbuild construction method and public-private partnership financing. The League continues to work with the bill sponsor to improve this bill. Read more details about the bill and its legislative history in last month's EcoLINC. Asheville water system transfer, Part II. With little notice to the Senate bill sponsors, House leaders inserted a provision into SB 341 Amend Interbasin Transfer Law that would amend the previously-passed law to transfer the City of Asheville's water system to a metropolitan sewerage district. The move occurred during the House Environment Committee debate last month. The provision, an effort to bolster the state's legal case in the lawsuit filed by the City of Asheville in response to the passage of HB 488 Regionalization of Public Utilities, would have ensnared the Greenville water and wastewater system in the same transfer scheme that applied to Asheville. When passed, HB 488 included a provision limiting its application only to public water systems that had not been issued an interbasin transfer (IBT) certificate. The new version of the IBT bill would eliminate that provision from law, thereby threatening future municipal control of utilities around the state, such as Greenville's. The League opposed the provision and worked with legislators to remove an identical provision from yet another bill to which it was attached earlier this month. However, the provision remains in SB 341. The House originally calendared the bill for a vote today, but that vote was subsequently rescheduled for tomorrow. If approved, it would need only a favorable concurrence vote by the full Senate before being sent to the Governor for his consideration. During floor debate the League expects legislators to delete this specific provision and possibly attempt another statutory mechanism to boost the state's legal arguments in the Asheville water system lawsuit. Mandatory extension of water/sewer lines. The House gave its final approval last week to SB 315 Municipal Services, a statewide bill targeted at requiring the City of Durham to provide water and sewer service to the 751 South development near Jordan Lake (read about the history of this project and the bill in last month's EcoLINC). The bill, which would also legislatively annex the development property into the City of Durham in 2023, is in effect for only 60 days after passage, limiting wide application of the legislation. Even so, the League opposes legislative decisions regarding the provision of local services. Representatives offered amendments to the bill during the House debate, including one requiring the developers of the property to report on their job creation efforts, but legislative maneuvering prevented any of those amendments from being voted on directly. The full Senate has rescheduled a vote on this bill three times, with the latest vote scheduled for today. If the Senate approves the bill, it would go to the Governor for his consideration.
Studies The omnibus studies bill is an annual legislative tradition at the end of session. This year, the League anticipates the following topics to be included in the final bill, among others: Jordan Lake Rules clean-up. As referenced above under "Stormwater," legislators intend 4_28_2014
Page 10 two studies related to the Jordan Lake Rules: one related to lake clean-up technology, the other more generally studying other ways to clean up the lake. Water/sewer entities. The version of SB 112 Create Jobs Through Regulatory Reform passed by the House last week includes a study of water and sewer districts. The language in SB 112 is identical to that of HB 814 Study Water & Sewer Districts. The provision would direct an interim legislative study of the various statutory models under which water and sewer is provided in the state, investigating the operations and financing of each type of model. The bill authorizes the study to make recommendations for reducing or consolidating such models of service provision. The models that would be studied include: sanitary districts, water and sewer authorities, metropolitan water districts, metropolitan sewerage districts, county water and sewer districts, and any other similar organizations.
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League Wins Concessions in Duke Rate Case The League presented its case, questioned witnesses, and gained concessions in the Duke Energy Carolinas rate increase hearing before the North Carolina Utilities Commission (NCUC) last week. The League's intervention in this case is supported by the over 100 League members who belong to the NC Municipal Energy Group; read more about the efforts supported by this group.
Lower Rates for Water, Wastewater Facilities As a result of the League’s and other groups’ interventions in the case, Duke agreed last month to cut its rate request in half; read details in this article from last month's EcoLINC. That agreement also included two other rate-related concessions that, should they be incorporated into the NCUC's Final Order later this fall, would further reduce rates for the user categories that include water and wastewater utilities. Adding to these earlier commitments, during last week's hearing, the League and other intervenors pressed Duke toward another major concession that would result in a lower rate for water and wastewater facilities. This request involved a request to consolidate two rates, OPT-I and OPT-G. Under cross-examination, a Duke witness testified that the utility would consider a separate proceeding to redesign these two rates. If the utility redesigned the rate as requested, water and wastewater facilities would be able to take advantage of a more favorable OPT rate, especially if that redesign was based on voltage or load factor. To support its arguments for consolidated rates, the League presented two witnesses as a panel. Along with their statements regarding the OPT rate consolidation, their testimony also included a request for more time-of-use options for utilities. If allowed by the NCUC, time-of-use options would assist utilities in managing their energy costs by rewarding utilities for shifting their intense energy use to off-peak times.
Testimony on LED Street Light Rates In addition, under cross-examination by the League at the hearing, the utility committed to devising an LED street lighting schedule by the end of the year. On this issue, NCUC Commissioner ToNola 4_28_2014
Page 11 Brown Bland -- a former Greensboro assistant city attorney -- specifically highlighted municipal leaders’ comments at public hearings held throughout the state over the past two months. She noted that without an LED rate schedule, cities in the Duke service area were precluded from making the most efficient use of electricity. As a result of this exchange, both the NCUC and Duke appeared open to setting a more specific timetable for an LED lighting schedule. Though Duke did not commit to any specific rate schedule features, under cross-examination, Duke’s witness moved from “hoping” to have an LED lighting schedule by the end of the year to “willing to commit” to that timeline. In this portion of the hearing, the League presented one witness in support of LED lighting schedules. This testimony emphasized that irrespective of the fact that Duke had committed to filing an LED rate schedule, there was a difference between a schedule that involved a single rate for LED street lights and one that involved two options, such as that offered by Duke sister company Duke Progress Carolinas. Having two options, the League witness stated, would give municipalities the necessary flexibility to make installation of LED lighting economically feasible.
Ongoing Discussions Between League, Duke Finally, in its hearing testimony, Duke indicated it would be willing to engage in a forum that would meet at least semi-annually with municipal officials and the NCUC Public Staff to discuss and clarify municipal concerns, such as electronic data interchange (EDI) billing. With the hearing concluded, each intervening party now has an opportunity to submit a post-hearing brief to make further arguments and solidify positions litigated at the hearing. Then, the NCUC will likely issue a final order in this case in the fall.
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Regulatory Briefs The Rules Review Commission objected to (pg. 18-19) certain parts of the flexible buffer mitigation rules, sending those particular rules back to the EMC for refinement and re-adoption...Environmental interests refused to agree to further extensions for the long-awaited national EPA stormwater rulemaking last month, forcing the agency into a 60-day dispute mediation process...DWQ will accept public comment until the end of the month on a new general permit that would allow de minimus discharges of reclaimed water, either from overspraying while irrigating or overflow from storage ponds during rain events...The state also streamlined its process for issuing authorization to construct permits for wastewater treatment plant designs, including update minimum design criteria...U.S. Senate leader Harry Reid announced he will move forward with a confirmation vote on Gina McCarthy for EPA Administrator this week, ending a block on her appointment that has been in place for most of this year...State officials revised the sedimentation and erosion control planning and design manual, updating eight standards...State water resources officials confirmed that they will conduct a public comment period on the recommendations of the Ecological Flows Scientific Advisory Board when the Board concludes its work this fall...White House approval of EPA's NPDES electronic reporting rule clears the way for release of the rule language later this month.
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NCLM & State Government Environmental Meetings and Events Ecological Flows Science Advisory Board, July 16 & 17, 9:00 am, Stan Adams Training Center at Jordan Lake, Chapel Hill Mining & Energy Commission Local Government Regulation Study Group, July 19, 1:00 pm, Archdale Building 5th Floor Conference Room, Raleigh Mining & Energy Commission committee meetings, July 25, 9:00 am, Archdale Building Ground Floor Hearing Room, Raleigh Mining & Energy Commission, July 26, 9:00 am, Archdale Building Ground Floor Hearing Room, Raleigh Mining & Energy Commission Funding Levels Study Group, July 30, 2:30 pm, Archdale Building 5th Floor Conference Room, Raleigh Nutrient Science Advisory Board, August 2, 9:30 am, Durham Water Reclamation Facility, 1900 East Club Boulevard, Durham Mining & Energy Commission, August 9, 9:00 am, Archdale Building Ground Floor Hearing Room, Raleigh Sedimentation Control Commission, August 15, 10:00 am, Archdale Building Ground Floor Hearing Room, Raleigh State Water Infrastructure Commission, August 16, 10:00 am, Green Square, Raleigh
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