March 19, 2014. On March 12, the N.C. General Assembly’s Environmental Review Commission (ERC) met to hear reports from several working groups created to follow up on 2013 legislative issues. [The ERC is a joint House/Senate committee that meets between legislative sessions to study and develop legislation on environmental issues.] The reports included recommended legislation, but the ERC did not really discuss the bill drafts. The ERC will vote on legislative proposals for the 2014 session in April. The working group bill drafts represent a starting point for development of 2014 legislation; the ERC co-chairs indicated a willingness to consider changes to the proposals before voting on April 3 to approve a package of 2014 ERC bills. With the understanding bill drafts may change between now and April 3, legislative proposals presented last week included:
Stormwater. The Regulatory Reform Act of 2013 (Session Law 2013-413) changed state stormwater standards to treat gravel areas as “pervious” and exclude those areas from the calculation of built-upon area on a development site. (A pervious surface allows water to percolate through to the soil beneath; an impervious surface –such as a concrete driveway — does not.) Since the amount of built-upon area determines the level of stormwater control required, developers had asked for exclusion of gravel from the calculation of built-upon area as a way to reduce stormwater requirements. The 2013 regulatory reform provision also directed the ERC to study state stormwater programs “including how partially impervious surfaces are treated in the calculation of built-upon area under those programs”.
Having successfully lobbied for legislation treating “gravel” as a pervious surface and intending to push for changes in the way partially impervious surfaces are counted toward built-upon area, supporters of the 2013 legislation encountered a complication — there was no consensus on the definition of “gravel”. As a result, the ERC stormwater working group focused on the gravel controversy instead of moving on to the issue of partially impervious surfaces.
The working group found that gravel areas may or may not be pervious depending on the size and type of the aggregate material used and the underlying substrate. The draft bill presented to the ERC would actually undo the 2013 legislative decision to exclude all gravel surfaces from the calculation of built-upon area and direct the Department of Environment and Natural Resources (DENR) to contract with N.C. State University for a study of the pervious/impervious qualities of different types of aggregate materials.
Isolated Wetlands. After several bills proposing to repeal state rules protecting isolated wetlands failed to win passage, the General Assembly asked the ERC to study isolated wetlands regulation. (See an earlier post for more background on the isolated wetlands issue.) Senator Brent Jackson presented a recommendation for modification, but not repeal, of state standards for development in isolated wetlands. You can find a copy of the draft legislation here.
The bill would allow developers to disturb a somewhat larger area of isolated wetlands without a water quality permit review. Current state rules allow isolated wetland impacts below specific thresholds to be “deemed permitted” under certain conditions. The proposed legislation would raise those thresholds. West of Interstate 95, the “deemed permitted” threshold would be increased from 1/10th of an acre to 1/3 of an acre; east of Interstate 95, the “deemed permitted” threshold would increase from 1/3 of an acre to 1 acre. (Interstate 95 has long been used as the dividing line between wetlands-rich eastern counties and piedmont/western counties that have fewer wetlands.)
The bill also proposes to reduce the mitigation required for isolated wetland impacts. Wetland rules only require mitigation (in the form of wetland creation, wetland restoration or preservation) for impacts to one acre or more of wetlands; for projects requiring mitigation, the rules set a 2:1 ratio of acres of wetlands mitigation to acres of wetlands impacted by development. The 2:1 mitigation ratio allows for loss of wetland function and potential for mitigation failure. Current rules also use a sliding scale of mitigation credits — giving less credit toward meeting the mitigation requirement for preservation of existing wetlands and more credit for creation or restoration of wetlands. The ERC working group recommendation appears to propose a flat 1:1 mitigation ratio and makes no distinction based on the type of mitigation used.
Local Environmental Ordinances. An earlier post described legislative efforts to restrain local government adoption of environmental ordinances, resulting in a one-year moratorium on adoption of new city and county environmental ordinances and an ERC study. The ERC working group on local ordinances, led by Rep. Chuck McGrady and Sen. Andrew Brock, found little actual conflict between state environmental regulations and local ordinances. The existence of a specific state/local conflict apparently became the practical guideline for the working group’s proposed legislation. The draft bill addresses the one area of conflict the members found — local ordinances on use and application of fertilizer already regulated by the N.C. Department of Agriculture and Consumer Services.
The recommended legislation follows the General Assembly’s past practice of preempting local regulation only when necessary to meet some overriding state interest. It is not clear how the narrowly drafted bill recommended by the working group will be received by those pushing for stricter limits on local environmental ordinances. In 2013, the N.C. Homebuilders Association lobbied for the much broader restrictions on local authority in Senate Bill 112 (discussed in the earlier post). Under the approach proposed in SB 112, it would be very difficult for a local government to adopt a more stringent ordinance on a subject already addressed (however narrowly) by state or federal environmental rules. For Senate Bill 112 supporters, the issue may be more about the benefits of a single, statewide set of minimum development standards than concern about conflict between state and local regulation.
Reporting wastewater spills. In response to concerns about delayed public notice of the recent Haw River wastewater spill, an ERC working group proposed to amend the existing notice law. You can find a copy of the draft legislation here. The amendments would do two things —
1. Clearly require notice to DENR of any spill of more than 1,000 gallons of untreated wastewater. (Although notice to DENR can be implied from the existing law, the statute only talks about published notice.)
2. Reduce the time allowed to provide notice (both to DENR and to the public) from 48 hours to 24 hours after untreated wastewater reaches surface waters. Based on discussion at the March meeting, the ERC may consider requiring more immediate notice to DENR.
Review of Engineering Work. North Carolina’s professional engineers (PEs) have lobbied for several years to limit state review of plans prepared by PEs and to limit the ability of regulators to require changes to engineering plans. The most recent effort led to language in the Regulatory Reform Act of 2013 (Session Law 2013-413) requiring a study of state and local review of engineering plans. Section 58 of S.L. 2013-413 directed DENR, the Department of Transportation, the Department of Health and Human Services and local governments to study:
“(iii) the standard scope of review within each permit program, including whether… staff are requiring revisions that exceed statutory or rulemaking requirements when evaluating such permits or plans; [and]
(iv) opportunities to eliminate unnecessary or superfluous revisions that may have resulted in the past from review processes that exceeded requirements under law, and opportunities to otherwise streamline and improve the review process for applications and plans submitted for approval.”
These issues have come up a number of times in recent years and seem to represent several different concerns on the part of private sector engineers: questions about the engineering credentials of state and local permit reviewers; concern about professional liability for changes in engineering design required by state/local permitting staff; time added to the permitting process; and chaffing at second-guessing of a PE’s judgment by regulatory staff.
The working group’s legislative proposal, can be found here. It appears to take a moderate path toward managing the tension between private sector engineers and state/local permitting staff. (A sometimes necessary tension given their different responsibilities.) One interesting part of the proposal has to do with review of innovative systems and designs. The bill would allow a permitting agency to charge the applicant for a third-party engineering review of an innovative system if the agency does not have a staff engineer qualified to do the review. That seems to be a wise approach given past controversies (and litigation) over approval of innovative systems.
Historical note: There have been a number of lawsuits against state and local permitting agencies based on approval of engineered innovative systems that later failed. One of the largest lawsuits resulted from the failure of a wastewater system serving dozens of homes in an Orange County subdivision in the 1990s. The homeowners sued the developer, the engineering firm that designed the system and the private utility managing the system — but also sued the state based on claims of negligent permitting. The state ultimately settled the lawsuit, paying thousands of dollars in damages to the homeowners.
Coal Ash. ERC co-chair Rep. Ruth Samuelson noted the high level of public interest in coal ash, but indicated the ERC would not discuss coal ash at the March meeting. Samuelson stressed the need for deliberation and informed decision-making. The ERC has only one more scheduled meeting before the General Assembly convenes in May. At the April 3 meeting, the ERC will vote on recommended legislation for the legislation session and there has been no discussion of potential coal ash legislation.