EcoLINC: July 17, 2012
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NCLM.org | July 17, 2012
IN THIS ISSUE:
EcoLINC: July 17, 2012 NCLM News & Political Report EMC Tables Mercury Proposal, Hunts for Alternatives Dramatic Vote Legalizes Natural Gas Extraction Legislators Thumb Noses at Local Control of Water/Wastewater Systems Following Forum, Regulators Tee Up Nutrient Proposals for Fall Hydrologic Model Trainings & Info Sessions This Week and Next Legislators Scatter Environmental Policy Changes Among Omnibus Bills Regulatory Briefs NCLM and State Government Environmental Meetings & Events ^ Back to Top
NCLM News & Political Report The past month has brought more than its fair share of sensational votes on environmental proposals affecting N.C. cities and towns. In perhaps the most high-profile and widely-reported of these votes, the legislature eked out a veto override of the natural gas extraction bill (read more below in "Dramatic Vote Legalizes Natural Gas Extraction"). Even without a mistaken vote by a Democratic legislator, a veto override on this bill would have been a nail-biter. It did not pass the House initially with a veto-proof majority, and members of both parties were crossing party lines. Governor Bev Perdue's anticipated veto was laced with drama as well given that members of environmental conservation groups sent her more messages of objection to the bill than on any other bill ever before. 4_28_2014
Page 2 That veto override vote took place the same night legislators worked mightily to pass a bill that was terribly damaging to Durham's water/wastewater system (read more below in "Legislators Thumb Noses at Local Control of Water/Wastewater Systems"). In multiple vote attempts preceded by startling announcements and renouncements of conference committees, the House bill sponsor convinced his Senate counterparts to bring the bill up a second time after a failed first vote, and continued to push for the provision in other vehicles - ultimately failing to obtain approval. The high drama then migrated to the N.C. Environmental Management Commission (EMC), which met just over a week after the legislature adjourned. At this meeting, the EMC considered a proposal for a statewide mercury water body clean-up plan (read more below in "EMC Tables Mercury Proposal, Hunts for Alternatives"). During the lively two-hour debate, commissioners conjured images of citizens afraid to eat fish or interact with the outdoors due to the message sent by the clean-up plan, with nearly every commissioner participating in the debate. Their discomfort with the approach presented to them led them to postpone the proposal while exploring other ways to achieve its goal of mercury reductions. In the midst of this debate -- surely one of the more interesting ones for a commission that often considers extremely technical environmental matters -- Commissioner Benne Hutson got his first taste of service on the EMC. Hutson, an environmental attorney with McGuire Woods law firm in Charlotte and appointee of the Speaker of the House, jumped right in. The League looks forward to a good working relationship with Commissioner Hutson. Finally, the League is pleased to report "no drama" for a pair of terrible precedent-setting bills that failed to pass. Affecting Kinston and Boone, those bills are nonetheless detailed below in "Legislators Thumb Noses at Local Control of Water/Wastewater Systems." League members with water/wastewater systems were threatened by the various attempts to dictate or withdraw service in these bills.
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EMC Tables Mercury Proposal, Hunts for Alternatives NOTE: A shorter version of this article appeared in the League's advocacy blog on July 16. In over two hours of colorful discussion in which nearly every commissioner spoke, the N.C. Environmental Management Commission (EMC) voted to table the proposed mercury water body clean-up plan and wastewater permitting strategy Thursday. At the same time, the Commission directed an exploration of alternate approaches to the plan. The water body clean-up plan -- generally called a Total Maximum Daily Load (TMDL), its name in the federal Clean Water Act (CWA) -- was developed in response to measured accumulations of mercury in large-mouth bass in N.C. waters. As with other TMDLs, the state Division of Water Quality (DWQ) proposed requiring reductions from municipal wastewater treatment systems through limits in their federal discharge permits. Wastewater dischargers -- both municipal and industrial -- would be the only two classes of permitholders targeted by the wastewater permitting strategy. Ultimately, the EMC agreed to postpone consideration of the proposal and instead explore alternate approaches. The EMC also agreed to include in the process a consultation with officials in the U.S. 4_28_2014
Page 3 Environmental Protection Agency (EPA) Region 4 office about the possibility of an alternate listing of the state's waters, called a "Category 5m" approach. While many questions remain over the scope of the search for alternatives, commissioners voted to examine a "hybrid" TMDL approach that would: 1. Retain the proposed TMDL's goal of a 67% reduction in mercury 2. Provide a way to remove waters with no mercury impairment 3. Further target mercury hot spots for more stringent regulation In this proposed TMDL, DWQ estimated that wastewater dischargers contributed two percent of the mercury load to the state's waters, while airborne mercury that reached the ground via rainfall contributed the remaining 98 percent. Unlike wastewater discharges, permitted sources of air emissions would not be affected under this plan. In addition, DWQ would not require any reductions from permitted stormwater programs. The draft mercury TMDL, released by DWQ in late April, applied to all waters in the state and is the first-ever statewide TMDL for North Carolina. The League has written extensively on this issue: Background on this unusual TMDL is in a March 2012 EcoLINC article Description of the unprecedented EMC vote on the plan is in a April 2012 EcoLINC article Reporting on the League's comments is in a June 2012 EcoLINC article
"Sunday fish fry is a sinister event" When considering whether to approve or table the DWQ proposal, EMC commissioners expressed many worries about the policy drivers behind the proposal, which was ultimately based on a fish consumption health advisory by the N.C. Department of Health and Human Services (DHHS) that categorized every water body in the state as likely to contain large fish with unsafe levels of mercury. However, according to Commissioner Steve Tedder, a former water quality regulator, most data collected on mercury levels in fish for N.C. waters revealed a different story. "The data does not support a conclusion that there's a mercury problem in fish tissue in North Carolina," he said, after detailing numerous examples of river basins in DWQ's database that lack data indicating mercury impairments. Tedder's argument was bolstered by a presentation to the EMC Air Quality Committee the day before revealing that mercury emissions from N.C. sources have been drastically reduced. (Read "NC mercury air emissions down in coal plants" from the News & Observer.) Many commissioners accepted that the proposed TMDL, which was not based on site-specific data, amounted to overregulation. "From a policy position, it is not appropriate to issue a blanket statewide strategy when there is no problem," said Commissioner Jeff Morse, Valdese town manager. Commissioner David Peden, a pediatrician, said the public message to not eat fish when most fish from North Carolina do not contain elevated levels of mercury would discourage healthy dietary choices. Said Peden, "If we condemn fish consumption, then it could steer folks to choices that are much 4_28_2014
Page 4 more toxic than a fish dinner." Commissioner Ernest Larkin, also a physician, echoed Peden's concerns, and Commissioner Tom Ellis added, "This fear of fish is not good...I'm afraid that what we're doing is scaring people away from the environment." Ultimately, said Commissioner Dickson Phillips, "The Sunday night fish fry has become a sinister event in North Carolina." Phillips went on to express a desire to find a way to make fish consumption safe again in North Carolina. Several other commissioners backed the idea that the proposed TMDL was an appropriate mechanism to make the state's waters safe for human fish consumption.
Policy Concerns Delay TMDL Approach Other commissioners took a different view. Commissioner Les Hall, a civil engineer, said he disagreed with the statewide approach because it did not address the original source of most mercury in the state's waters -- air emissions -- and instead targeted wastewater discharges. From a global perspective, he said, the strategy missed its mark and should have focused instead on the waters that actually have demonstrated mercury impairments. Ultimately, many concerns with the TMDL were rooted in the fact that the state's current policies -which to date have not been approved by the EMC -- created the disconnect that led to a strategy that did not target the source of the problem and instead further regulated de minimus contributors to mercury in water bodies: wastewater dischargers. Several commissioners worried that if the TMDL was approved, the state's current policies, or assessment methodology, offered only a remote chance of reversing that decision. In this case, the state's policy says that to lift the TMDL, DHHS would have to remove its fish consumption advisory, something Commissioner Marvin Cavanaugh termed as requiring "an act of God or Congress." Otherwise, a permittee would have the burden of demonstrating no impairment and gaining EPA's approval of that demonstration. Attorney and new EMC Commissioner Benne Hutson stated that he was troubled by this shifting of burden from the state to the permit-holder. He questioned why the state could declare a water impaired with no data, but then force the regulated party to provide data proving the impairment did not exist. Stating that the numerous problems identified throughout the discussion could be corrected if the state's assessment methodology was revisited with EMC oversight, former water quality regulator Tedder tried numerous times to include such a provision in the vote. Town manager Morse also attempted to include this provision in the motion that was ultimately tabled, but Chairman Steve Smith refused to allow this addition, stating that it was not encompassed by the public notice offered for this agenda item. The League has long advocated for the EMC to exercise the authority given to it in state statute to oversee the way waters are assessed and given impairment listings.
Consultation with EPA The final component of the EMC vote requested a meeting with EPA Region 4 officials to discuss other options. EPA plays a role in most large water quality actions undertaken by the state pursuant to the CWA because the state implements the federal law as a delegation of powers from EPA to DWQ. 4_28_2014
Page 5 In his motion that was eventually tabled, Morse proposed that the state pursue a Category 5m approach in lieu of the proposed mercury TMDL. EPA allows this alternate approach under federal guidelines just for mercury impairments when the primary source of mercury is atmospheric deposition. This maneuver would allow the state to forestall implementation of a TMDL so long as other mercury reduction programs are in place. In North Carolina, the 2002 Clean Smokestacks Act and the vehicle engine Mercury Switch Removal Program have proven to be a tremendous success at reducing in-state mercury presence in waters. The motion approved by the EMC would allow for a fuller discussion with EPA of whether the Category 5m alternative could work in North Carolina. Morse requested the EPA discussion because some commissioners and DWQ staff questioned the validity of the Category 5m approach, pointing to the fact that if the state went in that direction, EPA would disallow the wastewater permitting strategy put forth by the state. Therefore, a meeting with EPA offered another opportunity for discussion on the issue of wastewater permitting. The topic left many commissioners unsatisfied with DWQ's answers in response to commissioners' questions regarding EPA's stance toward wastewater permitting. Morse initiated this line of questioning by asking why, if EPA knew about the state's listing of all its waters as impaired for mercury since 2008, it suddenly in 2012 required more strict permit limits absent an approved TMDL. DWQ staff replied that EPA Region 4 had a sudden change of heart, and later in the discussion DWQ staff used that switch in EPA's approach to warn that no new wastewater discharge permits could be issued without approving the proposed TMDL. Tedder took issue with EPA's approach, stating that it went against EPA's own permitting guidance.
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Dramatic Vote Legalizes Natural Gas Extraction Just past 11:00 pm on the eve of adjournment, the N.C. House of Representatives voted to override Governor Bev Perdue's veto of a bill to legalize natural gas extraction. The House had exactly the number of "aye" votes needed for the override, but it reached that threshold due to a mistaken vote cast by one member. She was disallowed from changing her vote after the fact, because under House Rules, members are not allowed to change a vote if that change would reverse the outcome. So because the Senate had handily voted to override the veto earlier that afternoon, with the dramatic clincher vote in the House, the bill became law. The bill sets in place a framework around which regulations and associated procedures will be written. Read more about the contents of the bill in this June 2012 EcoLINC article. Throughout negotiations, the League successfully secured a stronger municipal voice than was in the original proposal. Now, municipalities have a seat at the table for the more substantive work to come.
Fourteen Months Under changes to the deadlines included in H 953--Amend Environmental Laws 2 (Gillespie), workgroups that include the League would have fourteen months instead of the original bill's five to form legislative recommendations regarding: 4_28_2014
Page 6 Sources and distribution of funding between state and local entities impacted by development of the natural gas extraction industry Local government regulation of the industry The Governor has yet to make a decision on whether to veto the environmental amends bill that allows this extension. Under the original bill which is now law, the League would also have input on the overall regulatory proposal to be developed by the new N.C. Mining & Energy Commission by October 2014. That proposal would need to gain legislative approval before going into effect. Only then would the N.C. Department of Environment and Natural Resources issue permits.
Commission Could Begin Soon The Mining & Energy Commission, a new regulatory body with authority over all aspects of natural gas extraction and other mining activities, may begin work when the original legislation becomes effective August 1. The legislature approved appointments to the Commission before adjourning, and with those appointments could reach a quorum to conduct business. All legislative appointments bills become law without presentment to the Governor. The Governor has not yet made any of her four appointments, possibly because she has not yet approved or vetoed another bill that made changes to the qualifications of various gubernatorial appointments to this commission. The one municipal seat on the Commission will be filled by Sanford Council Member Charles Taylor. The seat, an appointment by the Speaker of the House, expires June 30, 2016. Some other appointments remain fluid until the Governor's decision on the bill referenced above that made changes to the qualifications of certain seats. Read about other appointments made so far to this commission in "State's new fracking board leans toward drillers" from the News & Observer.
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Legislators Thumb Noses at Local Control of Water/Wastewater Systems After neutering municipalies' city-initiated annexation powers at the beginning of the 2012 Short Session, legislators spent the remainder of the session restricting control over various aspects of the provision of water/wastewater service outside municipal boundaries. The most harmful bills took aim at specific local situations in Asheville, Boone, Durham, and Kinston. However, as with all bills that are local in nature, the potential existed to expand them to statewide bills. League members and members of the Government Affairs team expended more energy on this set of issues than almost any other for the remainder of the session, successfully beating back most 4_28_2014
Page 7 proposals. Absent a comprehensive proposal encompassing growth management and water/wastewater service, these types of bills are expected to continue to recur in the next legislative session. The League membership, through its policy committees, will develop this proposal in the coming months.
Removing System Assets: The Asheville and Boone Examples Asheville example. A bill that sets up a forced transfer of the Asheville water system to Buncombe Metropolitan Sewerage District (MSD), H 1009--MSD Amendments (McGrady), passed the legislature and awaits the signature of Governor Bev Perdue. Read more details about this bill in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC. Boone example. A bill to reverse a decision granting Boone the ability to construct a new four million gallon-per-day water intake structure, H 1227--Disapprove New River Basin Rule (Jordan), failed to pass. The League opposed this bill because it would have stopped any additional growth of the Boone water system, which had reached the 80 percent capacity trigger to halt future connections. Read more details about this bill in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC.
Removing Operational Control: The Durham and Kinston Examples Durham example. Possibly the worst precedent-setting bill of this series of legislation, S 382-Amend Water Supply/Water Quality Laws (Apodaca) failed to pass despite a series of odd events and a tremendous push by the bill sponsor just prior to adjournment. Though written to apply statewide, the bill targeted a local situation in Durham involving a developer desiring water/wastewater service for a massive residential development in the Jordan Lake watershed just outside Durham city limits. The bill would have mandated that Durham provide water/wastewater service to the development. Read more details in the League LINC blog post "Municipal Issues Feature Strongly in Legislature's Final Debates." Kinston example. In the last weeks of session, Rep. Stephen LaRoque seized an unrelated bill sponsored by Sen. Bill Purcell and completely rewrote it to mandate that Kinston provide water/wastewater service outside its jurisdiction to any party requesting that service, at the same rate paid by rate payers within the city limit. The City of Kinston and the League strongly opposed S 472-Kinston Public Enterprises (Purcell), and the bill ultimately failed to pass. Read more details in "Surprise Bill Hurts Kinston and Sets Bad Precedent" in the June 22 edition of the League LINC Bulletin.
Removing System Planning Control: The Sea Level Rise and Incoporations Examples Sea level rise example. The original version of H 819--Coastal Management Policies (McElraft) restricted a local system's ability to plan for expected levels of sea level rise. Such restrictions would have inhibited actions taken to protect significant public infrastructure such as water/wastewater treatment plants and collection/distribution systems. The final version of the bill 4_28_2014
Page 8 removed the restrictions on local governments and now awaits Governor Perdue's signature. Read more details about this bill and the accompanying controversy in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC. Incorporations example. S 231--Incorp/ETJ Study (Hartsell) underwent several iterations this session before arriving at the study. Before morphing into a study, the bill would have limited some water/wastewater systems from expanding close to a competing system. The bill in its final form did not include the restrictive provisions and failed to pass. Read more details about the earlier form of this bill in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC.
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Following Forum, Regulators Tee Up Nutrient Proposals for Fall On the heels of the much-lauded "N.C. Forum on Nutrient Over-Enrichment," regulators with the N.C. Division of Water Quality (DWQ) have promised several large regulatory actions this fall. During an update given to the N.C. Environmental Management Commission (EMC) Thursday, DWQ Planning Section Chief Alan Clark told Commissioners to expect three significant nutrient control proposals to come before the EMC beginning this fall: 1. A numeric nutrient criteria implementation plan. Such a rule could establish in-stream nitrogen and phosphorus standards -- the so-called "numeric nutrient criteria" that have caused extreme controversy in Florida and elsewhere over the past two years. In past remarks to the EMC, Clark has stated that the U.S. Environmental Protection Agency (EPA) expects North Carolina to develop in-stream standards as a condition of a federal grant to DWQ. 2. A proposal to prevent nutrient impairment of waterbodies. Regulation prior to impairment is the same concept underlying the failed "threshold rules" proposed in 2010. Still, in his remarks to the Commission, Clark maintained that the new proposal would not take the same form as his section's previous attempt at statewide nutrient regulation. 3. A long-planned nutrient control strategy. This strategy would target High Rock Lake (information item III), located in the western piedmont in the Yadkin-Pee Dee river basin. The lake has been the subject of nutrient control discussions for the past eight years, and modeling of the lake and its vast watershed should be complete in late summer or early fall. Upon completion of the models, DWQ will likely propose nutrient controls for the 70+ local governments upstream of the lake, similar to the approach in the Jordan Lake Rules or Falls Rules.
Will Proposals Reflect Lessons Learned from Forum? Since initially proposing the nutrient forum, DWQ officials have stated that the information presented would inform any future nutrient proposals. When giving a statement on take-away points from the forum at the EMC meeting Thursday, EMC Chair Steve Smith listed his expectations for future action: 4_28_2014
Page 9 Research into which approaches have worked in other states Identification of environmental indicators of impairment Clear definition of what constitutes impairment Exploration of site-specific approaches to regulation Inclusion of affected stakeholders in developing strategies and regulations Considering different strategies for lakes, rivers, and estuaries Smith said he thought the EMC would either engage in rulemaking or study the issue and provide recommendations for the legislature to pursue. The topic of nutrient impairment is a top EPA priority and has commanded much discussion and action across the country since President Obama took office. Specifically, the Obama administration has responded to environmental activists' calls for states to develop numeric nutrient standards, or criteria, which dischargers such as wastewater treatment plants and stormwater systems would then have to meet. Smith's continued expectations for the direction of nutrient management in the state reflect a sentiment expressed by EMC commissioners a year and a half ago when first directing DWQ to go back to the drawing board on nutrient regulation. Then, EMC commissioners requested that the reconsideration process should: 1. Explore alternatives 2. Form a more clear statement of the underlying science 3. Conduct a detailed review of costs and cost savings 4. Consider basing the threshold on a parameter besides chlorophyll-a 5. Consider other indicators of change in water quality circumstances. At the time, EMC commissioners also addressed another major concern raised by the League: the lack of a stakeholder process in the rule development. Then, commissioners stated that they expected the involvement of the municipal regulated community in future discussions of these rules. Now, building on its intense involvement in the state's nutrient proposals, the League will continue discussions with EMC commissioners and DWQ to ensure input in the development of any proposed strategies and regulations.
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Hydrologic Model Trainings & Info Sessions This Week and Next The N.C. Division of Water Resources (DWR) has begun a public comment period for one hydrologic model and will offer training on that model by request this week and next. In addition, DWR is offering a public information session for a different modeling effort next week. Those two efforts, the Broad River Basin Model and the combined Cape Fear-Neuse River Basin Model, represent the beginning of a five- to six-year-long process to map and predict water availability in every river basin in the state. A hydrologic model simulates 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, ecological flow requirements, and other data on the flow of water. These models could prove to be a valuable tool for local 4_28_2014
Page 10 governments in assessing the resilience of their water supplies versus future growth projections.
Receive Training and Comment Now on Broad River Basin Model Under a process initiated by 2010 legislation, DWR must propose all seventeen N.C. river basin models for approval by the N.C. Environmental Management Commission (EMC). The public comment period for the first such model, the Broad River Basin Model, is now underway and lasts until August 30. Importantly, DWR will also offer online training sessions to any persons wanting to learn to use the model, built on the OASIS hydrologic modeling platform. As of this writing, nobody had requested training to better understand the model. The principles developed for this model will apply to future models developed for the state's other river basins. An EMC committee gave preliminary approval to this model in May. Final approval of the model by the EMC is expected in September. While state statutes direct the EMC to approve all river basin models, the process is not considered rulemaking and therefore will not follow formal rulemaking procedures. Following expected approval of the Broad River Basin Model, DWR will next bring forth model proposals for the following basins: Tar, Cape Fear-Neuse (see below), and Roanoke river basins. Virginia is also participating in development of the Roanoke model, given that the basin extends into Virginia. Read more about the Broad River effort and the background behind all river basin models in an article from the May 2012 edition of EcoLINC.
Public Meeting for Cape Fear-Neuse River Basin Model DWR has also prioritized development of a combined Cape Fear-Neuse River Basin Model as part of the ongoing Jordan Lake Water Supply Allocation. It will hold a public meeting to review the status of this model on July 23 (see calendar below for specific details). Merging models of the Cape Fear and Neuse River Basins became necessary with the request for further allocation of the lake by a group of nearby local governments, the Jordan Lake Partnership. These thirteen county and municipal governments collaborated in 2009 to jointly plan for expanded use of available water supply in Jordan Lake. That request prompted DWR to tackle a combination of the two affected river system models. Sign up to receive ongoing information from DWR regarding this modeling effort.
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Legislators Scatter Environmental Policy Changes Among Omnibus Bills Changes to the state's environmental laws and policy came scattered among various omnibus bills this session. Due to the fast pace of the seven-week session, such bills offered the most expedient 4_28_2014
Page 11 way to pass dozens of disparate changes into law. Here is a rundown of the changes affecting cities and towns.
Environmental Amends Bill S 229--Amend Environmental Laws 2012 (East) passed both chambers with a Senate vote at 2:20 am the last day of session. This bill, which contained nearly two dozen changes to the state's environmental laws, awaits Governor Bev Perdue's signature. The bill was the subject of a drawn-out conference committee process to reach agreement between the chambers. Please read this update to the June 2012 EcoLINC article on the bill for descriptions of the final topics included: Stormwater capture & reuse Kerr Lake reallocation Compost permitting Airport stormwater control Treatment of lands in riparian buffers Development in Neuse, Tar-Pam buffers Non-contiguous parcels Wastewater facilities in NSW waters NSW goals Basinwide planning cycle Jordan Lake new development rule delay Community water system definition Private drinking water well setbacks Leaking underground storage tank clean-up New septage pumper truck notification
Regulatory Reform Bill Like the environmental amends bill, S 810--Regulatory Reform Act of 2012 (Rouzer) passed both chambers and awaits Governor Bev Perdue's signature. This bill included non-environmental topics, but read this update to the June 2012 EcoLINC article on the bill to review the environmental changes of interest to municipalities: Qualifications for appointments to the Mining & Energy Commission APA changes Definition of "discharge" Wastewater permitting in Jordan/Falls watersheds Permit tracking Landfill and transfer station permitting
Environmental Technical Corrections Bill H 953--Amend Environmental Laws 2 (Gillespie) went through numerous changes in the back-andforth between the House and Senate before finally passing the House just after midnight on the last 4_28_2014
Page 12 day of session. It too awaits Governor Perdue's signature. And while the bill contains some technical changes to the state's environmental laws, much of its content may be regarded as substantive policy changes. Measures of interest to municipalities include: Landfill disposal waiver. Adds oyster shells to the list of recyclable materials from which city or county may seek a waiver from rules prohibiting their disposal in landfills, if prohibiting disposal presents an economic hardship to the local government. EEP preferences. Modifies changes made in 2011 to the laws governing the Ecosystem Enhancement Program (EEP), the state's mitigation banking program. Lists the order of preference in which EEP must use various mitigation programs. Jordan Lake new development rule delay. Mirrors the same provision in the environmental amends bill described above. Natural gas extraction workgroups. Modifies S 820--Clean Energy and Economic Security Act (Rucho) to give workgroups that include the League fourteen months instead of the original bill's five to form legislative recommendations regarding (1) sources and distribution of funding between state and local entities impacted by development of the natural gas extraction industry; and (2) local government regulation of the industry.
DENR Budget H 950--Modify 2011 Appropriations Act (Brubaker) contained several pieces of good news for the N.C. Department of Environment and Natural Resources (DENR) FY 12-13 budget. The bill became law with a successful veto override at the end of this year's session. While absorbing a two percent cut to the Department's budget at the discretion of the DENR Secretary -- a cut of $2.2 million -- the budget restored funding to DENR's regional offices to the tune of $12 million. Last year, the regional offices underwent a "justification review" that threatened to close entire offices if they were found unnecessary. The DENR budget also included funding for three new positions to support implementation of S 820-Clean Energy and Economic Security Act (Rucho), the natural gas extraction legislation. DENR had originally requested seven positions for this task within the retitled Division of Energy, Mineral, and Land Resources (formerly called the Division of Land Resources).
Trespass to Water Treatment Facilities S 141--Law Enforcement/Various Other Changes (Apodaca) is an omnibus public safety bill signed into law by the Governor Thursday. It contained one provision of interest to public water supply systems, regarding trespass to "any facility used or available for use in the collection, treatment, testing, storing, pumping, or distribution of water for a public water system." The bill heightened the class of a violation for individuals who trespass on those facilities from a Class 2 to a Class A1 misdemeanor. In addition, a trespass action is now a Class H felony if committed with the intent to disrupt normal business operations or places either the offender or others on the premises at the risk of serious bodily injury. These same provisions also apply to electric power facilities and liquefied natural gas or propane 4_28_2014
Page 13 storage facilities. The impetus for this bill likely originated from May's Greenpeace protests at Duke Energy's Cliffside plant near Lake Norman. Then, protestors chained themselves to nearby train tracks, preventing a coal train from entering the facility.
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Regulatory Briefs EPA has announced its national post-construction stormwater rule will now be released June 10, 2013, with an anticipated final rule a year and a half later on December 10, 2014...North Carolina's 2012 303(d) list is expected to receive EPA approval in early August...The League submitted written comments urging more flexibility in groundwater standard-setting...The EMC approved for public hearing a rule package -- including a fiscal note -- to provide flexible buffer mitigation options...Over a year after the appellate court decision in a precedent-setting case involving municipal water rights and the Piedmont Triad Water Authority, the League and other local governments including the City of Salisbury and the Water & Sewer Authority of Cabarrus County have filed amicus briefs as the N.C. Supreme Court takes up the case...DWR plans to release its water efficiency BMP manual at the end of July for feedback...The N.C. Nutrient Scientific Advisory Board, created under the Jordan Lake Rules to improve the tools that control nutrient loading to water bodies from existing development, has released its 2012 annual report...The U.S. Supreme Court will hear arguments in the Los Angeles MS4 system case, focusing on whether waters entering the MS4 from an "unencumbered" stream, which then flow out of the MS4 system back into that same stream, are water transfers that add pollutants and thereby require a Clean Water Act permit...By November, EPA intends to write nationwide guidance for its 319 nonpoint source grant program, focusing on program accountability across EPA regions...The U.S. House Agriculture Committee passed its mark-up of the Farm Bill Thursday while voting down an amendment sponsored by N.C. Rep. Mike McIntyre that would have restored $50 million in Rural Development Funding to address a backlog in local government water and wastewater projects. ^ Back to Top
NCLM and State Government Environmental Meetings & Events Cape Fear-Neuse Hydrologic Model Update, July 23, 1:00 pm, Archdale Building ground floor hearing room, Raleigh; or join online and use conference call number 919.501.4273 NCLM Regulatory Advisory Committee, July 24, 10:00 am, Parks & Recreation Building, 136 North Point Avenue, High Point Nutrient Science Advisory Board, August 3, 9:30 am, Triangle J Council of Governments Meeting Room, Durham NCLM Planning & Environment Legislative Action Committee, August 14, 10:00 am, Albert Coates Local Government Center, Raleigh State Water Infrastructure Commission, August 17, 10:00 am, Green Square, Raleigh
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From: EcoLINC <[email protected]> To: =?utf-8?Q?Wakild _Chuck?= Date: 7/17/2012 12:27:18 PM Subject: EcoLINC:_July_17th Display this email in your brow ser
NCLM.org | July 17, 2012
IN THIS ISSUE:
EcoLINC: July 17, 2012 NCLM News & Political Report EMC Tables Mercury Proposal, Hunts for Alternatives Dramatic Vote Legalizes Natural Gas Extraction Legislators Thumb Noses at Local Control of Water/Wastewater Systems Following Forum, Regulators Tee Up Nutrient Proposals for Fall Hydrologic Model Trainings & Info Sessions This Week and Next Legislators Scatter Environmental Policy Changes Among Omnibus Bills Regulatory Briefs NCLM and State Government Environmental Meetings & Events ^ Back to Top
NCLM News & Political Report The past month has brought more than its fair share of sensational votes on environmental proposals affecting N.C. cities and towns. In perhaps the most high-profile and widely-reported of these votes, the legislature eked out a veto override of the natural gas extraction bill (read more below in "Dramatic Vote Legalizes Natural Gas Extraction"). Even without a mistaken vote by a Democratic legislator, a veto override on this bill would have been a nail-biter. It did not pass the House initially with a veto-proof majority, and members of both parties were crossing party lines. Governor Bev Perdue's anticipated veto was laced with drama as well given that members of environmental conservation groups sent her more messages of objection to the bill than on any other bill ever before. 4_28_2014
Page 2 That veto override vote took place the same night legislators worked mightily to pass a bill that was terribly damaging to Durham's water/wastewater system (read more below in "Legislators Thumb Noses at Local Control of Water/Wastewater Systems"). In multiple vote attempts preceded by startling announcements and renouncements of conference committees, the House bill sponsor convinced his Senate counterparts to bring the bill up a second time after a failed first vote, and continued to push for the provision in other vehicles - ultimately failing to obtain approval. The high drama then migrated to the N.C. Environmental Management Commission (EMC), which met just over a week after the legislature adjourned. At this meeting, the EMC considered a proposal for a statewide mercury water body clean-up plan (read more below in "EMC Tables Mercury Proposal, Hunts for Alternatives"). During the lively two-hour debate, commissioners conjured images of citizens afraid to eat fish or interact with the outdoors due to the message sent by the clean-up plan, with nearly every commissioner participating in the debate. Their discomfort with the approach presented to them led them to postpone the proposal while exploring other ways to achieve its goal of mercury reductions. In the midst of this debate -- surely one of the more interesting ones for a commission that often considers extremely technical environmental matters -- Commissioner Benne Hutson got his first taste of service on the EMC. Hutson, an environmental attorney with McGuire Woods law firm in Charlotte and appointee of the Speaker of the House, jumped right in. The League looks forward to a good working relationship with Commissioner Hutson. Finally, the League is pleased to report "no drama" for a pair of terrible precedent-setting bills that failed to pass. Affecting Kinston and Boone, those bills are nonetheless detailed below in "Legislators Thumb Noses at Local Control of Water/Wastewater Systems." League members with water/wastewater systems were threatened by the various attempts to dictate or withdraw service in these bills.
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EMC Tables Mercury Proposal, Hunts for Alternatives NOTE: A shorter version of this article appeared in the League's advocacy blog on July 16. In over two hours of colorful discussion in which nearly every commissioner spoke, the N.C. Environmental Management Commission (EMC) voted to table the proposed mercury water body clean-up plan and wastewater permitting strategy Thursday. At the same time, the Commission directed an exploration of alternate approaches to the plan. The water body clean-up plan -- generally called a Total Maximum Daily Load (TMDL), its name in the federal Clean Water Act (CWA) -- was developed in response to measured accumulations of mercury in large-mouth bass in N.C. waters. As with other TMDLs, the state Division of Water Quality (DWQ) proposed requiring reductions from municipal wastewater treatment systems through limits in their federal discharge permits. Wastewater dischargers -- both municipal and industrial -- would be the only two classes of permitholders targeted by the wastewater permitting strategy. Ultimately, the EMC agreed to postpone consideration of the proposal and instead explore alternate approaches. The EMC also agreed to include in the process a consultation with officials in the U.S. 4_28_2014
Page 3 Environmental Protection Agency (EPA) Region 4 office about the possibility of an alternate listing of the state's waters, called a "Category 5m" approach. While many questions remain over the scope of the search for alternatives, commissioners voted to examine a "hybrid" TMDL approach that would: 1. Retain the proposed TMDL's goal of a 67% reduction in mercury 2. Provide a way to remove waters with no mercury impairment 3. Further target mercury hot spots for more stringent regulation In this proposed TMDL, DWQ estimated that wastewater dischargers contributed two percent of the mercury load to the state's waters, while airborne mercury that reached the ground via rainfall contributed the remaining 98 percent. Unlike wastewater discharges, permitted sources of air emissions would not be affected under this plan. In addition, DWQ would not require any reductions from permitted stormwater programs. The draft mercury TMDL, released by DWQ in late April, applied to all waters in the state and is the first-ever statewide TMDL for North Carolina. The League has written extensively on this issue: Background on this unusual TMDL is in a March 2012 EcoLINC article Description of the unprecedented EMC vote on the plan is in a April 2012 EcoLINC article Reporting on the League's comments is in a June 2012 EcoLINC article
"Sunday fish fry is a sinister event" When considering whether to approve or table the DWQ proposal, EMC commissioners expressed many worries about the policy drivers behind the proposal, which was ultimately based on a fish consumption health advisory by the N.C. Department of Health and Human Services (DHHS) that categorized every water body in the state as likely to contain large fish with unsafe levels of mercury. However, according to Commissioner Steve Tedder, a former water quality regulator, most data collected on mercury levels in fish for N.C. waters revealed a different story. "The data does not support a conclusion that there's a mercury problem in fish tissue in North Carolina," he said, after detailing numerous examples of river basins in DWQ's database that lack data indicating mercury impairments. Tedder's argument was bolstered by a presentation to the EMC Air Quality Committee the day before revealing that mercury emissions from N.C. sources have been drastically reduced. (Read "NC mercury air emissions down in coal plants" from the News & Observer.) Many commissioners accepted that the proposed TMDL, which was not based on site-specific data, amounted to overregulation. "From a policy position, it is not appropriate to issue a blanket statewide strategy when there is no problem," said Commissioner Jeff Morse, Valdese town manager. Commissioner David Peden, a pediatrician, said the public message to not eat fish when most fish from North Carolina do not contain elevated levels of mercury would discourage healthy dietary choices. Said Peden, "If we condemn fish consumption, then it could steer folks to choices that are much 4_28_2014
Page 4 more toxic than a fish dinner." Commissioner Ernest Larkin, also a physician, echoed Peden's concerns, and Commissioner Tom Ellis added, "This fear of fish is not good...I'm afraid that what we're doing is scaring people away from the environment." Ultimately, said Commissioner Dickson Phillips, "The Sunday night fish fry has become a sinister event in North Carolina." Phillips went on to express a desire to find a way to make fish consumption safe again in North Carolina. Several other commissioners backed the idea that the proposed TMDL was an appropriate mechanism to make the state's waters safe for human fish consumption.
Policy Concerns Delay TMDL Approach Other commissioners took a different view. Commissioner Les Hall, a civil engineer, said he disagreed with the statewide approach because it did not address the original source of most mercury in the state's waters -- air emissions -- and instead targeted wastewater discharges. From a global perspective, he said, the strategy missed its mark and should have focused instead on the waters that actually have demonstrated mercury impairments. Ultimately, many concerns with the TMDL were rooted in the fact that the state's current policies -which to date have not been approved by the EMC -- created the disconnect that led to a strategy that did not target the source of the problem and instead further regulated de minimus contributors to mercury in water bodies: wastewater dischargers. Several commissioners worried that if the TMDL was approved, the state's current policies, or assessment methodology, offered only a remote chance of reversing that decision. In this case, the state's policy says that to lift the TMDL, DHHS would have to remove its fish consumption advisory, something Commissioner Marvin Cavanaugh termed as requiring "an act of God or Congress." Otherwise, a permittee would have the burden of demonstrating no impairment and gaining EPA's approval of that demonstration. Attorney and new EMC Commissioner Benne Hutson stated that he was troubled by this shifting of burden from the state to the permit-holder. He questioned why the state could declare a water impaired with no data, but then force the regulated party to provide data proving the impairment did not exist. Stating that the numerous problems identified throughout the discussion could be corrected if the state's assessment methodology was revisited with EMC oversight, former water quality regulator Tedder tried numerous times to include such a provision in the vote. Town manager Morse also attempted to include this provision in the motion that was ultimately tabled, but Chairman Steve Smith refused to allow this addition, stating that it was not encompassed by the public notice offered for this agenda item. The League has long advocated for the EMC to exercise the authority given to it in state statute to oversee the way waters are assessed and given impairment listings.
Consultation with EPA The final component of the EMC vote requested a meeting with EPA Region 4 officials to discuss other options. EPA plays a role in most large water quality actions undertaken by the state pursuant to the CWA because the state implements the federal law as a delegation of powers from EPA to DWQ. 4_28_2014
Page 5 In his motion that was eventually tabled, Morse proposed that the state pursue a Category 5m approach in lieu of the proposed mercury TMDL. EPA allows this alternate approach under federal guidelines just for mercury impairments when the primary source of mercury is atmospheric deposition. This maneuver would allow the state to forestall implementation of a TMDL so long as other mercury reduction programs are in place. In North Carolina, the 2002 Clean Smokestacks Act and the vehicle engine Mercury Switch Removal Program have proven to be a tremendous success at reducing in-state mercury presence in waters. The motion approved by the EMC would allow for a fuller discussion with EPA of whether the Category 5m alternative could work in North Carolina. Morse requested the EPA discussion because some commissioners and DWQ staff questioned the validity of the Category 5m approach, pointing to the fact that if the state went in that direction, EPA would disallow the wastewater permitting strategy put forth by the state. Therefore, a meeting with EPA offered another opportunity for discussion on the issue of wastewater permitting. The topic left many commissioners unsatisfied with DWQ's answers in response to commissioners' questions regarding EPA's stance toward wastewater permitting. Morse initiated this line of questioning by asking why, if EPA knew about the state's listing of all its waters as impaired for mercury since 2008, it suddenly in 2012 required more strict permit limits absent an approved TMDL. DWQ staff replied that EPA Region 4 had a sudden change of heart, and later in the discussion DWQ staff used that switch in EPA's approach to warn that no new wastewater discharge permits could be issued without approving the proposed TMDL. Tedder took issue with EPA's approach, stating that it went against EPA's own permitting guidance.
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Dramatic Vote Legalizes Natural Gas Extraction Just past 11:00 pm on the eve of adjournment, the N.C. House of Representatives voted to override Governor Bev Perdue's veto of a bill to legalize natural gas extraction. The House had exactly the number of "aye" votes needed for the override, but it reached that threshold due to a mistaken vote cast by one member. She was disallowed from changing her vote after the fact, because under House Rules, members are not allowed to change a vote if that change would reverse the outcome. So because the Senate had handily voted to override the veto earlier that afternoon, with the dramatic clincher vote in the House, the bill became law. The bill sets in place a framework around which regulations and associated procedures will be written. Read more about the contents of the bill in this June 2012 EcoLINC article. Throughout negotiations, the League successfully secured a stronger municipal voice than was in the original proposal. Now, municipalities have a seat at the table for the more substantive work to come.
Fourteen Months Under changes to the deadlines included in H 953--Amend Environmental Laws 2 (Gillespie), workgroups that include the League would have fourteen months instead of the original bill's five to form legislative recommendations regarding: 4_28_2014
Page 6 Sources and distribution of funding between state and local entities impacted by development of the natural gas extraction industry Local government regulation of the industry The Governor has yet to make a decision on whether to veto the environmental amends bill that allows this extension. Under the original bill which is now law, the League would also have input on the overall regulatory proposal to be developed by the new N.C. Mining & Energy Commission by October 2014. That proposal would need to gain legislative approval before going into effect. Only then would the N.C. Department of Environment and Natural Resources issue permits.
Commission Could Begin Soon The Mining & Energy Commission, a new regulatory body with authority over all aspects of natural gas extraction and other mining activities, may begin work when the original legislation becomes effective August 1. The legislature approved appointments to the Commission before adjourning, and with those appointments could reach a quorum to conduct business. All legislative appointments bills become law without presentment to the Governor. The Governor has not yet made any of her four appointments, possibly because she has not yet approved or vetoed another bill that made changes to the qualifications of various gubernatorial appointments to this commission. The one municipal seat on the Commission will be filled by Sanford Council Member Charles Taylor. The seat, an appointment by the Speaker of the House, expires June 30, 2016. Some other appointments remain fluid until the Governor's decision on the bill referenced above that made changes to the qualifications of certain seats. Read about other appointments made so far to this commission in "State's new fracking board leans toward drillers" from the News & Observer.
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Legislators Thumb Noses at Local Control of Water/Wastewater Systems After neutering municipalies' city-initiated annexation powers at the beginning of the 2012 Short Session, legislators spent the remainder of the session restricting control over various aspects of the provision of water/wastewater service outside municipal boundaries. The most harmful bills took aim at specific local situations in Asheville, Boone, Durham, and Kinston. However, as with all bills that are local in nature, the potential existed to expand them to statewide bills. League members and members of the Government Affairs team expended more energy on this set of issues than almost any other for the remainder of the session, successfully beating back most 4_28_2014
Page 7 proposals. Absent a comprehensive proposal encompassing growth management and water/wastewater service, these types of bills are expected to continue to recur in the next legislative session. The League membership, through its policy committees, will develop this proposal in the coming months.
Removing System Assets: The Asheville and Boone Examples Asheville example. A bill that sets up a forced transfer of the Asheville water system to Buncombe Metropolitan Sewerage District (MSD), H 1009--MSD Amendments (McGrady), passed the legislature and awaits the signature of Governor Bev Perdue. Read more details about this bill in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC. Boone example. A bill to reverse a decision granting Boone the ability to construct a new four million gallon-per-day water intake structure, H 1227--Disapprove New River Basin Rule (Jordan), failed to pass. The League opposed this bill because it would have stopped any additional growth of the Boone water system, which had reached the 80 percent capacity trigger to halt future connections. Read more details about this bill in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC.
Removing Operational Control: The Durham and Kinston Examples Durham example. Possibly the worst precedent-setting bill of this series of legislation, S 382-Amend Water Supply/Water Quality Laws (Apodaca) failed to pass despite a series of odd events and a tremendous push by the bill sponsor just prior to adjournment. Though written to apply statewide, the bill targeted a local situation in Durham involving a developer desiring water/wastewater service for a massive residential development in the Jordan Lake watershed just outside Durham city limits. The bill would have mandated that Durham provide water/wastewater service to the development. Read more details in the League LINC blog post "Municipal Issues Feature Strongly in Legislature's Final Debates." Kinston example. In the last weeks of session, Rep. Stephen LaRoque seized an unrelated bill sponsored by Sen. Bill Purcell and completely rewrote it to mandate that Kinston provide water/wastewater service outside its jurisdiction to any party requesting that service, at the same rate paid by rate payers within the city limit. The City of Kinston and the League strongly opposed S 472-Kinston Public Enterprises (Purcell), and the bill ultimately failed to pass. Read more details in "Surprise Bill Hurts Kinston and Sets Bad Precedent" in the June 22 edition of the League LINC Bulletin.
Removing System Planning Control: The Sea Level Rise and Incoporations Examples Sea level rise example. The original version of H 819--Coastal Management Policies (McElraft) restricted a local system's ability to plan for expected levels of sea level rise. Such restrictions would have inhibited actions taken to protect significant public infrastructure such as water/wastewater treatment plants and collection/distribution systems. The final version of the bill 4_28_2014
Page 8 removed the restrictions on local governments and now awaits Governor Perdue's signature. Read more details about this bill and the accompanying controversy in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC. Incorporations example. S 231--Incorp/ETJ Study (Hartsell) underwent several iterations this session before arriving at the study. Before morphing into a study, the bill would have limited some water/wastewater systems from expanding close to a competing system. The bill in its final form did not include the restrictive provisions and failed to pass. Read more details about the earlier form of this bill in "Local Control of Water/Wastewater Systems Under Fire" in the June 2012 edition of EcoLINC.
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Following Forum, Regulators Tee Up Nutrient Proposals for Fall On the heels of the much-lauded "N.C. Forum on Nutrient Over-Enrichment," regulators with the N.C. Division of Water Quality (DWQ) have promised several large regulatory actions this fall. During an update given to the N.C. Environmental Management Commission (EMC) Thursday, DWQ Planning Section Chief Alan Clark told Commissioners to expect three significant nutrient control proposals to come before the EMC beginning this fall: 1. A numeric nutrient criteria implementation plan. Such a rule could establish in-stream nitrogen and phosphorus standards -- the so-called "numeric nutrient criteria" that have caused extreme controversy in Florida and elsewhere over the past two years. In past remarks to the EMC, Clark has stated that the U.S. Environmental Protection Agency (EPA) expects North Carolina to develop in-stream standards as a condition of a federal grant to DWQ. 2. A proposal to prevent nutrient impairment of waterbodies. Regulation prior to impairment is the same concept underlying the failed "threshold rules" proposed in 2010. Still, in his remarks to the Commission, Clark maintained that the new proposal would not take the same form as his section's previous attempt at statewide nutrient regulation. 3. A long-planned nutrient control strategy. This strategy would target High Rock Lake (information item III), located in the western piedmont in the Yadkin-Pee Dee river basin. The lake has been the subject of nutrient control discussions for the past eight years, and modeling of the lake and its vast watershed should be complete in late summer or early fall. Upon completion of the models, DWQ will likely propose nutrient controls for the 70+ local governments upstream of the lake, similar to the approach in the Jordan Lake Rules or Falls Rules.
Will Proposals Reflect Lessons Learned from Forum? Since initially proposing the nutrient forum, DWQ officials have stated that the information presented would inform any future nutrient proposals. When giving a statement on take-away points from the forum at the EMC meeting Thursday, EMC Chair Steve Smith listed his expectations for future action: 4_28_2014
Page 9 Research into which approaches have worked in other states Identification of environmental indicators of impairment Clear definition of what constitutes impairment Exploration of site-specific approaches to regulation Inclusion of affected stakeholders in developing strategies and regulations Considering different strategies for lakes, rivers, and estuaries Smith said he thought the EMC would either engage in rulemaking or study the issue and provide recommendations for the legislature to pursue. The topic of nutrient impairment is a top EPA priority and has commanded much discussion and action across the country since President Obama took office. Specifically, the Obama administration has responded to environmental activists' calls for states to develop numeric nutrient standards, or criteria, which dischargers such as wastewater treatment plants and stormwater systems would then have to meet. Smith's continued expectations for the direction of nutrient management in the state reflect a sentiment expressed by EMC commissioners a year and a half ago when first directing DWQ to go back to the drawing board on nutrient regulation. Then, EMC commissioners requested that the reconsideration process should: 1. Explore alternatives 2. Form a more clear statement of the underlying science 3. Conduct a detailed review of costs and cost savings 4. Consider basing the threshold on a parameter besides chlorophyll-a 5. Consider other indicators of change in water quality circumstances. At the time, EMC commissioners also addressed another major concern raised by the League: the lack of a stakeholder process in the rule development. Then, commissioners stated that they expected the involvement of the municipal regulated community in future discussions of these rules. Now, building on its intense involvement in the state's nutrient proposals, the League will continue discussions with EMC commissioners and DWQ to ensure input in the development of any proposed strategies and regulations.
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Hydrologic Model Trainings & Info Sessions This Week and Next The N.C. Division of Water Resources (DWR) has begun a public comment period for one hydrologic model and will offer training on that model by request this week and next. In addition, DWR is offering a public information session for a different modeling effort next week. Those two efforts, the Broad River Basin Model and the combined Cape Fear-Neuse River Basin Model, represent the beginning of a five- to six-year-long process to map and predict water availability in every river basin in the state. A hydrologic model simulates 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, ecological flow requirements, and other data on the flow of water. These models could prove to be a valuable tool for local 4_28_2014
Page 10 governments in assessing the resilience of their water supplies versus future growth projections.
Receive Training and Comment Now on Broad River Basin Model Under a process initiated by 2010 legislation, DWR must propose all seventeen N.C. river basin models for approval by the N.C. Environmental Management Commission (EMC). The public comment period for the first such model, the Broad River Basin Model, is now underway and lasts until August 30. Importantly, DWR will also offer online training sessions to any persons wanting to learn to use the model, built on the OASIS hydrologic modeling platform. As of this writing, nobody had requested training to better understand the model. The principles developed for this model will apply to future models developed for the state's other river basins. An EMC committee gave preliminary approval to this model in May. Final approval of the model by the EMC is expected in September. While state statutes direct the EMC to approve all river basin models, the process is not considered rulemaking and therefore will not follow formal rulemaking procedures. Following expected approval of the Broad River Basin Model, DWR will next bring forth model proposals for the following basins: Tar, Cape Fear-Neuse (see below), and Roanoke river basins. Virginia is also participating in development of the Roanoke model, given that the basin extends into Virginia. Read more about the Broad River effort and the background behind all river basin models in an article from the May 2012 edition of EcoLINC.
Public Meeting for Cape Fear-Neuse River Basin Model DWR has also prioritized development of a combined Cape Fear-Neuse River Basin Model as part of the ongoing Jordan Lake Water Supply Allocation. It will hold a public meeting to review the status of this model on July 23 (see calendar below for specific details). Merging models of the Cape Fear and Neuse River Basins became necessary with the request for further allocation of the lake by a group of nearby local governments, the Jordan Lake Partnership. These thirteen county and municipal governments collaborated in 2009 to jointly plan for expanded use of available water supply in Jordan Lake. That request prompted DWR to tackle a combination of the two affected river system models. Sign up to receive ongoing information from DWR regarding this modeling effort.
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Legislators Scatter Environmental Policy Changes Among Omnibus Bills Changes to the state's environmental laws and policy came scattered among various omnibus bills this session. Due to the fast pace of the seven-week session, such bills offered the most expedient 4_28_2014
Page 11 way to pass dozens of disparate changes into law. Here is a rundown of the changes affecting cities and towns.
Environmental Amends Bill S 229--Amend Environmental Laws 2012 (East) passed both chambers with a Senate vote at 2:20 am the last day of session. This bill, which contained nearly two dozen changes to the state's environmental laws, awaits Governor Bev Perdue's signature. The bill was the subject of a drawn-out conference committee process to reach agreement between the chambers. Please read this update to the June 2012 EcoLINC article on the bill for descriptions of the final topics included: Stormwater capture & reuse Kerr Lake reallocation Compost permitting Airport stormwater control Treatment of lands in riparian buffers Development in Neuse, Tar-Pam buffers Non-contiguous parcels Wastewater facilities in NSW waters NSW goals Basinwide planning cycle Jordan Lake new development rule delay Community water system definition Private drinking water well setbacks Leaking underground storage tank clean-up New septage pumper truck notification
Regulatory Reform Bill Like the environmental amends bill, S 810--Regulatory Reform Act of 2012 (Rouzer) passed both chambers and awaits Governor Bev Perdue's signature. This bill included non-environmental topics, but read this update to the June 2012 EcoLINC article on the bill to review the environmental changes of interest to municipalities: Qualifications for appointments to the Mining & Energy Commission APA changes Definition of "discharge" Wastewater permitting in Jordan/Falls watersheds Permit tracking Landfill and transfer station permitting
Environmental Technical Corrections Bill H 953--Amend Environmental Laws 2 (Gillespie) went through numerous changes in the back-andforth between the House and Senate before finally passing the House just after midnight on the last 4_28_2014
Page 12 day of session. It too awaits Governor Perdue's signature. And while the bill contains some technical changes to the state's environmental laws, much of its content may be regarded as substantive policy changes. Measures of interest to municipalities include: Landfill disposal waiver. Adds oyster shells to the list of recyclable materials from which city or county may seek a waiver from rules prohibiting their disposal in landfills, if prohibiting disposal presents an economic hardship to the local government. EEP preferences. Modifies changes made in 2011 to the laws governing the Ecosystem Enhancement Program (EEP), the state's mitigation banking program. Lists the order of preference in which EEP must use various mitigation programs. Jordan Lake new development rule delay. Mirrors the same provision in the environmental amends bill described above. Natural gas extraction workgroups. Modifies S 820--Clean Energy and Economic Security Act (Rucho) to give workgroups that include the League fourteen months instead of the original bill's five to form legislative recommendations regarding (1) sources and distribution of funding between state and local entities impacted by development of the natural gas extraction industry; and (2) local government regulation of the industry.
DENR Budget H 950--Modify 2011 Appropriations Act (Brubaker) contained several pieces of good news for the N.C. Department of Environment and Natural Resources (DENR) FY 12-13 budget. The bill became law with a successful veto override at the end of this year's session. While absorbing a two percent cut to the Department's budget at the discretion of the DENR Secretary -- a cut of $2.2 million -- the budget restored funding to DENR's regional offices to the tune of $12 million. Last year, the regional offices underwent a "justification review" that threatened to close entire offices if they were found unnecessary. The DENR budget also included funding for three new positions to support implementation of S 820-Clean Energy and Economic Security Act (Rucho), the natural gas extraction legislation. DENR had originally requested seven positions for this task within the retitled Division of Energy, Mineral, and Land Resources (formerly called the Division of Land Resources).
Trespass to Water Treatment Facilities S 141--Law Enforcement/Various Other Changes (Apodaca) is an omnibus public safety bill signed into law by the Governor Thursday. It contained one provision of interest to public water supply systems, regarding trespass to "any facility used or available for use in the collection, treatment, testing, storing, pumping, or distribution of water for a public water system." The bill heightened the class of a violation for individuals who trespass on those facilities from a Class 2 to a Class A1 misdemeanor. In addition, a trespass action is now a Class H felony if committed with the intent to disrupt normal business operations or places either the offender or others on the premises at the risk of serious bodily injury. These same provisions also apply to electric power facilities and liquefied natural gas or propane 4_28_2014
Page 13 storage facilities. The impetus for this bill likely originated from May's Greenpeace protests at Duke Energy's Cliffside plant near Lake Norman. Then, protestors chained themselves to nearby train tracks, preventing a coal train from entering the facility.
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Regulatory Briefs EPA has announced its national post-construction stormwater rule will now be released June 10, 2013, with an anticipated final rule a year and a half later on December 10, 2014...North Carolina's 2012 303(d) list is expected to receive EPA approval in early August...The League submitted written comments urging more flexibility in groundwater standard-setting...The EMC approved for public hearing a rule package -- including a fiscal note -- to provide flexible buffer mitigation options...Over a year after the appellate court decision in a precedent-setting case involving municipal water rights and the Piedmont Triad Water Authority, the League and other local governments including the City of Salisbury and the Water & Sewer Authority of Cabarrus County have filed amicus briefs as the N.C. Supreme Court takes up the case...DWR plans to release its water efficiency BMP manual at the end of July for feedback...The N.C. Nutrient Scientific Advisory Board, created under the Jordan Lake Rules to improve the tools that control nutrient loading to water bodies from existing development, has released its 2012 annual report...The U.S. Supreme Court will hear arguments in the Los Angeles MS4 system case, focusing on whether waters entering the MS4 from an "unencumbered" stream, which then flow out of the MS4 system back into that same stream, are water transfers that add pollutants and thereby require a Clean Water Act permit...By November, EPA intends to write nationwide guidance for its 319 nonpoint source grant program, focusing on program accountability across EPA regions...The U.S. House Agriculture Committee passed its mark-up of the Farm Bill Thursday while voting down an amendment sponsored by N.C. Rep. Mike McIntyre that would have restored $50 million in Rural Development Funding to address a backlog in local government water and wastewater projects. ^ Back to Top
NCLM and State Government Environmental Meetings & Events Cape Fear-Neuse Hydrologic Model Update, July 23, 1:00 pm, Archdale Building ground floor hearing room, Raleigh; or join online and use conference call number 919.501.4273 NCLM Regulatory Advisory Committee, July 24, 10:00 am, Parks & Recreation Building, 136 North Point Avenue, High Point Nutrient Science Advisory Board, August 3, 9:30 am, Triangle J Council of Governments Meeting Room, Durham NCLM Planning & Environment Legislative Action Committee, August 14, 10:00 am, Albert Coates Local Government Center, Raleigh State Water Infrastructure Commission, August 17, 10:00 am, Green Square, Raleigh
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