Author Archives: rwsmith

UNC Nutrient Study: It’s Deja Vu All Over Again (Apologies to Yogi Berra)

January 6, 2020. On December 23, 2019, the UNC Policy Collaboratory released a legislatively mandated report on nutrient pollution in Jordan Lake.  The short version: A three year, multi-million dollar study has confirmed the science and policy underlying the 2009 Jordan Lake water quality rules.

Background.  In 2002, the North Carolina Environmental Management Commission (EMC) designated Jordan Lake as having impaired water quality due to excess nutrients  (nitrogen and phosphorus) contributing to algal blooms in the lake. The EMC and  water quality staff  in the Department of Environmental Quality (DEQ) spent seven years developing a nutrient management strategy to address water quality standard violations in Jordan Lake as required by the federal Clean Water Act and by state water quality  laws.   In 2009, the EMC adopted rules to implement the final nutrient management strategy.  Following guidelines in state law, the rules required all major nutrient sources — wastewater treatment plants, agricultural operations,  runoff from new development activity and previously developed areas  — to take steps to reduce nutrient releases to the lake.  The 2009 nutrient management strategy set goals for nitrogen and phosphorus reduction to be met by a combination of wastewater treatment plant upgrades, agricultural best management practices and stormwater controls including riparian buffers along rivers and streams.

Later in 2009,  the legislature adopted the first of.a series of acts revising or delaying implementation of the Jordan Lake nutrient rules in response to complaints from  local governments and  real estate development interests.  Communities in the Haw River watershed, including Burlington and Greensboro,  voiced particularly strong objections to the rules. In 2013,  legislators directed the water quality program to test an unproven in-lake technology to reduce algal growth as a possible substitute for nutrient reduction rules and appropriated $1.35 million to support the pilot project. (See an earlier post about the “Solar Bee” pilot project.)   In 2016, the legislature created the N.C. Policy Collaboratory at UNC-CH  and appropriated $500,000 a year for three years for the Collaboratory to study  and make recommendations concerning Jordan Lake water quality.  In the meantime,  the legislature appropriated $1.3 million in 2017 for another DEQ pilot project to test algaecides and phosphorus-locking technologies to control algal growth. Both  the Solar Bee and algaecide pilot projects failed. The nutrient management rules have continued to be suspended for completion of the UNC study. 

UNC Findings. The overall conclusions of the UNC report support the findings underlying the EMC’s 2009 nutrient management strategy:

♦ An effective nutrient reduction strategy requires measures to reduce both nitrogen and phosphorus releases to the lake.

♦ The sources of nutrient loading to Jordan Lake are nearly evenly divided between point sources (wastewater treatment plant discharges) and non-point sources (runoff from developed areas and agricultural operations). Non-point sources are a slightly greater contributor to nutrient loading.

♦ The Haw River contributes the greatest nutrient load to Jordan Lake, but other factors affecting movement and concentration of nutrients cause sources in the Upper New Hope arm of the lake to have a disproportionate impact on lake water quality. The 2009 EMC rules reflected a similar conclusion and required sources in the  Upper New Hope Arm of Jordan Lake to achieve greater nutrient reductions than sources in the Haw River watershed — a 35% nitrogen reduction versus an 8% reduction by Haw River communities.

♦  Runoff from developed land contains 10 times the concentration of nutrients than undeveloped lands; areas developed before 1980 generate significantly higher nutrient concentrations than those developed later.

♦ Wastewater treatment plant upgrades provide the most cost effective nutrient reduction  (in terms of pounds of nutrients removed per dollar invested). Riparian buffers and conservation of undeveloped lands are among the most cost-effective methods of reducing non-point source nutrient loading.

New lake and watershed models developed as part of the UNC study built on earlier models used by the EMC to develop the 2009 rules. The new modeling provides additional insight into the contribution of wastewater infrastructure to nutrient loading in response to storm events.

The UNC  report also concludes that measures to reduce new nutrient releases to Jordan Lake will show the greatest benefit over the long term because lake sediments have stored nutrients over time and release those nutrients back to the water column.

 UNC Study Recommendations.   First, the gaps. The recommendations don’t directly  address specific requirements of the  2009 Jordan Lake rules although most of the study’s findings support the scientific foundation and basic structure of the rules.  The UNC study reinforces the need to  reduce  both wastewater discharges of nitrogen and phosphorus and non-point source runoff  of nutrients to Jordan Lake. The study documents that non-point sources (runoff from developed areas and agriculture) account for more than 50% of the nutrient loading to Jordan Lake; developed areas contribute much more to nutrient loading than undeveloped areas;  and maintenance of vegetated buffers between developed areas and streams is one of the most cost-effective ways to reduce nutrient loading from non-point sources.

The lead recommendation in the UNC report is largely political; it focuses on how to  fund nutrient reduction strategies.  The legislature directed UNC to look at funding mechanisms in response to the objections of upstream communities in the Jordan Lake watershed  — particularly in the Haw River arm of the lake — to the cost of nutrient reduction measures  benefitting downstream communities. In response, the report identifies a water allocation fee  on local governments that receive drinking water from Jordan Lake as a possible funding mechanism.

Imposing a fee on downstream communities experiencing pollution of their drinking water supply by upstream pollutant sources would likely be controversial. It would also represent a significant policy change. Most state water quality programs impose  pollution reduction costs primarily on  the pollution source.  A number of existing state nutrient reduction programs in other river basins have followed that model. Communities in the Neuse River basin (including Raleigh) have implemented nutrient reduction programs similar to those required in the Jordan Lake rules for more than 20 years.  Those communities have absorbed the costs of pollution reductions to reduce nutrient-enrichment problems downstream in the coastal Neuse River estuaries.

Among the other UNC recommendations:

♦ Build local government support for nutrient management measures by emphasizing the local as well as downstream benefits.

♦ Review the existing state water quality standard for nutrient over-enrichment. DEQ has already asked a science advisory panel to review the current standard which is based on chlorophyl a concentrations. The UNC report recommends continuing the review and considering whether additional water quality parameters should be considered and applied depending on the uses of different sections of Jordan Lake.

♦ Consider relocation of sewer infrastructure to reduce the risk of leaks to streams and implement programs to address failing septic systems. (The 2009  Jordan Lake rules allowed local governments to include programs to address failing septic systems as one tool to meet nutrient reduction targets.)

♦ The recommendations highlight the value of land conservation as a tool for reducing nutrient loading. The recommendations do not mention the study conclusion that riparian buffers represent one of the most cost-effective ways to reduce non-point source nutrient loading.

♦ The report concludes that the relatively small amount of agricultural production  in the Jordan Lake watershed makes the Jordan Lake agricultural trading program ineffective.

The Takeaway.  Ten years and several million dollars later, the UNC report on Jordan Lake supports the decision by the EMC and the Department of Environmental Quality to develop a nutrient management strategy based on reduction targets for all of the major nutrient sources in the watershed — wastewater dischargers, development activity and agriculture. The report also confirms a number of the key scientific principles behind the rules — including  imposition of greater reduction targets on sources in the Upper New Hope arm of Jordan Lake and requiring reductions from both point and non-point sources.

The new lake and watershed models developed under the UNC study  build on those used to develop the 2009 Jordan Lake rules and provide additional  insights on the contributions of sewer infrastructure and septic systems. The study raises questions about the efficacy of the existing agricultural trading program.

Compared to the underlying studies, the executive summary has a decidedly political tilt — emphasizing the potential to reduce costs on upstream pollution sources by assessing a fee on downstream water users and downplaying legislatively unpopular — but cost effective — use of riparian buffers.

Editorial Comment.  The EMC and water quality program staff worked for  seven years to develop a fair and effective nutrient reduction program for Jordan Lake based on science and mediated by input from all of the affected parties. Rule development included several rounds of consultation with those potentially affected by the rules — local governments, developers, farmers, water users.   The UNC report supports the science behind the EMC nutrient strategy and  implicitly emphasizes the importance of implementing the strategy as soon as possible since the benefits  will only be realized over time.

The state has already lost nearly 10 years. The Jordan Lake nutrient strategy can — and should — be regularly reviewed and adapted based on new information. The UNC study suggests some areas for ongoing work. Nothing in the UNC study supports further delay.

One stakeholder is quoted in the report as saying:

It’s important not to look at the experience of Jordan and say, “oh, what this shows is that we can’t approach things with the Clean Water Act lens, we can’t approach things through rules, a nutrient management strategy lens.” That isn’t broken. What’s broken is the political system in the state.

2019 Legislation: Environmental and Energy Laws

December 27, 2019. A  short list of environmental and energy law changes compared to recent years:

Fisheries.   As interest in  shellfish aquaculture has increased, so have concerns about the impact of the rapidly evolving aquaculture industry on water recreation and navigation.  Senate Bill 648   creates a new framework for management of aquaculture operations by allowing the Division of Marine Fisheries (DMF) to designate  “shellfish aquaculture enterprise areas” where water bottom and water column leases can be issued for shellfish aquaculture. Similar to water use zoning, the concept gives DMF the ability to direct shellfish operations toward areas already approved for the purpose instead of  simply responding to a lease application for any location of the applicant’s choosing.

The bill has some weaknesses. It doesn’t provide guidance on siting shellfish aquaculture enterprise areas.  The bill requires notice and a public hearing prior to designation of an aquaculture enterprise area, but relies on the limited notice requirements in existing statutes authorizing individual bottom and water column leases. Those existing public notice provisions in G.S. 113-202 (bottom leases)  and G.S. 113-202.1 (water column leases) only require notice by newspaper publication.  The statutes do not require direct notice to either the local government or to  owners of property along the affected shoreline.

Senate Bill 648 also creates a pilot project for shellfish aquaculture leasing in Pamlico Sound while imposing  moratoria on approval of new open-water shellfish aquaculture leases in  New Hanover County and Bogue Sound. At the same time, the bill makes it possible for DMF to approve operations to grow seed oysters and clams in marinas (which under existing shellfish rules have been closed to any type of shellfish propagation), which may relieve some pressure for new open water aquaculture leases.

Water Quality.  House Bill 812  (Nutrient Offset Amendments) provides more flexibility in projects to mitigate nutrient loading from wastewater dischargers. The amendments allow nutrient offsets for  permitted NPDES discharges to be provided EITHER  in the same hydrologic area (the current requirement) OR  at a location downstream of the discharge, but upstream of the water body subject to regulations to address excess nutrient loading. For stormwater and other nutrient sources, the law continues to require nutrient offsets in the same hydrologic area.

Section 3 of House Bill 206  (Various Transportation Changes)  requires the EMC to exempt a broader range of airport-associated development from the Neuse River riparian buffer rules. The Neuse buffer rules require vegetated buffers along streams in the Neuse River basin as a tool for reducing nutrient runoff  and excess nutrient loading to downstream estuaries. Since airport facilities also have to meet Federal Aviation Administration siting criteria,  current EMC rules exempt certain aviation-related facilities from buffer requirements and allow others to impact the buffer with mitigation.

Under the existing EMC rule,   “airport facilities” allowed to impact the buffer include structures directly related to aviation operations such as runways, terminals, maintenance buildings, administrative buildings, onsite airport parking, navigation markers,  and beacons.  The EMC rules do not exempt satellite facilities such as off-site parking or hotels, rental car facilities and other commercial development. H 206 directs the EMC to revise and broaden the definition of  “airport facility” in the rules to allow the riparian buffer exemption to apply to development of those airport-associated commercial facilities.

On-Site Wastewater.  Regulations on siting and design of on-site wastewater systems (such as septic systems) have both a public health and environmental protection purpose. The rules exist to prevent direct exposure to untreated wastewater and contamination of groundwater and nearby rivers, streams and lakes.  House Bill 268 (Amend On-Site Wastewater Laws) is a somewhat mis-titled bill that actually disapproves more than 40 rules concerning on-site wastewater systems  and reclaimed water systems amended by the Commission for Public Health in 2018. The bill may be one of the broadest exercises of the legislature’s power to disapprove agency rules since the legislature claimed that  authority under the State’s Administrative Procedure Act.

Legislative disapproval means the amended rules cannot go into effect;  prior versions of the rules remain in place in the meantime. The bill creates a task force to report back to the legislature in February 2020 on rules to replace those amended in 2018.  One purpose of the  task force (as set out in the bill ) is to make recommendations “to prevent the implementation of rules and ordinances and enforcement against the use of on-site wastewater treatment and dispersal systems in non-sewered areas of the State”.  

The disapproval bill responded to concerns from homebuilders and realtors that the amended rules will make it more difficult to develop some areas using onsite wastewater systems. In part, the controversy seems to be a continuation of past conflicts over how easy (or hard) it should be to approve innovative onsite wastewater systems for use in areas that are not appropriate for a conventional septic tank system. 

Renewable Energy.  House Bill 329 (Renewable Energy Amendments) makes several relatively minor changes to energy laws.  Section 1 of the bill exempts electric vehicle charging stations from the definition of “public utility” as long as the owner simply resells electricity supplied by a regulated public utility. Otherwise, sale of  electricity by a charging station could lead to  regulation of the facilities by the N.C. Utilities Commission under laws applied to Duke Energy and other electricity providers.

Section 2 requires the Environmental Management Commission (EMC) to establish a new regulatory program “to govern (i) the management of end-of-life photovoltaic modules and energy storage system batteries and (ii) decommissioning of utility-scale solar projects and wind energy facilities” by January 1, 2022.  The bill lists a number of issues for the EMC to consider in developing rules, including whether system components have the characteristics of hazardous waste and preferred methods of end of life management (i.e., reuse, recycling, or disposal as solid waste).

Section 3  amends the law governing how the N.C. Utilities Commission  sets avoided cost rates for an electric utility’s purchase of power from a small power producer. The law, G.S. 62-156,  generally takes into consideration the electric utility’s need for additional capacity and the availability/reliability of energy provided by the small power producer.  The law already provides an alternative mechanism for determining capacity need with respect to energy purchased from swine and poultry operations with waste-to-energy systems by reference to G.S. 62-133.8. The 2019 amendment extends special treatment with respect to capacity need to certain small hydroelectric projects (those with total capacity less than or equal to 5 MW). In effect, the change appears to lock in the renewal of existing power purchase agreements between electric utilities and small hydropower producers that were in effect as of July 27, 2017.

Boards and Commissions.  Senate Bill 381  (Boards and Commissions) amended the appointment statutes for the Clean Water Management Trust Fund Board and for the Parks and Recreation Trust Fund Board to give the Governor a majority of appointments to those boards.  S 381 continues a series of  legislative acts necessary to comply with the 2016 N.C. Supreme Court decision in McCrory v. Berger.  In that decision, the court  held that the Governor must have the power to appoint a majority of the members of any board or commission that exercises executive authority. See an earlier post  for more about the court’s decision.

S 381 also amended the Clean Water Management Trust Fund statutes to expressly give the Fund authority to accept FEMA funds for hazard mitigation and to disperse funds for projects to reduce flood risk.

Vetoed Bills.  For the first time since 2011, the legislature lacked a veto-proof majority in both chambers.  As a result, a  number of bills containing provisions related to environmental protection remain in limbo because the legislature has not yet voted to override Governor Cooper’s veto. The legislature could attempt to override those vetoes in 2020. The content of the vetoed bills will be discussed in a separate post.

Environmental Budget Cuts in NC: 2008-2018

December 12, 2019.  On December 5, the Environmental Integrity Project (a national nonprofit organization) issued a report on state funding for environmental protection programs. The report, The Thin Green Line,  looks at staffing levels and funding for environmental programs between 2008 and 2018 in the lower 48 states.

In addition to providing funding and position numbers for each state, the report profiles five states — including North Carolina.  During the period covered by the report, N.C. environmental programs experienced one of the highest levels of cuts to both operating budgets and staff in the country. The legislature made significant reductions even as the state’s population grew, the overall state budget increased and the state faced new environmental challenges.

Before highlighting  the findings related to North Carolina, a note about the report’s methodology.  The report compares  2018 funding levels to both 2008 dollars and inflation-adjusted 2008 dollars.  The percentage increase or decrease in funding calculated for each state represents the change from inflation-adjusted 2008 funding.

Funding and position numbers only reflect resources for environmental protection programs;  the report did not include parks and recreation or fish and wildlife agencies. Budget numbers do not include infrastructure programs, such as the drinking water and wastewater loan and grant programs. The report excluded the capital spending because it varies year to year depending on grant cycles and does not support  basic pollution control activities such as permitting, inspections and compliance actions.

Key findings related to North Carolina’s environmental protection programs:

♦ Adjusted for inflation, N.C. environmental programs experienced a 34% reduction in operating funds between 2008 and 2018.

 2008 Funding   Inflation Adjusted 2008  Funding   2018 Funding
 $116 million  $136 million   $90 million

♦ During the same period, staff levels in N.C. environmental protection programs fell by 35%, from 1,051 in 2008 to 675 in 2018.

♦ As environmental protection programs experienced significant cuts, the total state budget actually grew by 8%.

The level of reduction in  both operating funds and staff put North Carolina among only six states nationwide that experienced  reductions of greater than 30%. A number of states increased funding and staff.

The North Carolina profile in the EIP report notes that the reductions occurred against a backdrop of ongoing problems associated with large animal operations; the need to address pollution at coal ash disposal sites; repeated flood events; and vulnerability to sea level rise.  The report does not mention another resource intensive environmental issue that arose during this time period — water pollution associated with emerging contaminants such a GenX and other per- and polyfluoroalkyl substances (PFAS).

A January 2017  post on this blog provided a snapshot of some of the program level impacts of budget reductions by the end of 2016. The EIP report picks up on one of the impacts mentioned then — the backlog of water pollution permits  and permit renewals awaiting state review. As noted in the EIP report, permitting backlogs can create pressure to issue approvals without sufficient review.  The report doesn’t mention another problem — facilities may continue to operate under permit conditions that do not reflect current environmental standards.

The EIP report notes that even as many states cut environmental programs,  Congress reduced staff levels at EPA by 16% and cut EPA’s operating budget by 17% (nearly $1 billion a year).  In combination, the federal and state budget/staff reductions make effective and timely environmental enforcement much more difficult.

The full report can be found on the Environmental Integrity Project website at https://www.environmentalintegrity.org.

2019 Legislation: The Budget

December 4, 2019.  The 2019 legislative session was distinguished by its slow pace and  lack of movement on significant legislation until very late in the session. The session finally ended in late October — and then reconvened to take up redistricting.  

The session failed to produce a comprehensive two-year budget. Governor Cooper vetoed the budget bill passed by the two chambers (H 966).  Although the House voted to override the veto, the Senate has not taken an override vote. In the absence of a comprehensive budget bill,  the legislature adopted several smaller appropriation bills to provide continued funding for state agencies.  House Bill 111 (Session Law 2019-242) provided base-budget funding for a number of state agencies, including the Department of Environmental Quality (DEQ).

The irregular budget process means fewer details on spending;  the appropriations bills generally focus on top-line numbers. There is no equivalent of the joint appropriations committee report that always accompanies the budget bill to provide  detailed information on funding/staff changes at the program level.

DEQ Top Line Budget Numbers:  The table below compares 2018 budget numbers for DEQ to the funding included in H 111 for the 2019-200 fiscal year. Note: “Receipts” includes both fees and grant funding.  “Appropriated” funds  represent monies allocated to DEQ by the legislature from the state’s general fund for the 2019-2020 fiscal year; that figure can include both continuing program funding and one-time appropriations for a specific purpose.

Receipts    Appropriated       Total
2018: $154,234,668 2018 $95,647,490    2018: $249,882,158
2019: $114,576,705 2019: $114,576,705  2019: $193,918,082
  (-$39,657,963)         (-$16,306,113)  (-$55,964,076)

The figures show an overall reduction of $55, 964,076 in funding for DEQ programs by comparison to 2018 numbers — around 20%. The reduction reflects a $39,657,963 reduction in receipts and a reduction of $16,306,113 in state appropriated funding. The level of funding also falls nearly $20 million short of the funding provided in the vetoed budget bill.

The drop in receipts likely reflects in part the normal timing of grant cycles rather than an unusual reduction in funding. Otherwise, the fact that H 111 only funds the “base budget” — the cost of maintaining current funding levels for ongoing operations — accounts for the difference.  As a continuation budget, H 111 appropriated no new money on either a one-time or continuing basis.

Additional Appropriations. Several other bills include additional appropriations for particular purposes, many related to disaster relief.

Senate Bill 429 (Disaster Recovery) appropriates $8 million to DEQ for disaster-related water and wastewater infrastructure projects, cleanup, coastal management planning and dam safety activities. Another $11.5 million will go into DEQ’s Coastal Storm Mitigation Fund to offset the cost of beach and dune restoration projects. A local government can receive up to $2.5 million  in project funding and the provision waives local cost sharing.

Other funds appropriated in Senate Bill 429:

$2 million to UNC’s N.C. Policy Collaboratory to study flooding in Eastern North Carolina and measures to increase resiliency in flood-prone communities. The provision requires the Collaboratory to develop a flooding and resiliency implementation plan and report back to the legislature’s Emergency Management Oversight Committee by December 1, 2020.

$1 million to the Wildlife Resources Commission for removal of derelict and abandoned vessels from coastal waters.

$3 million in new funding to DEQ  for grants to Surry County for three infrastructure projects. These appropriations do not appear to be disaster-related.)

House Bill 200  (2019 Storm Recovery) includes $17.6 million in state matching funds needed to draw down the next award of federal grants for the Clean Water State Revolving Fund and the Drinking Water Revolving Loan Fund. Those state/federal revolving loan programs provide low and zero-interest loans to local governments for water and wastewater treatment systems.

Off the Table (For Now).  The unresolved conflict over House Bill 966 means that several provisions in the budget bill have fallen off the table at least for the time being. House Bill 966 appropriated about $15 million in new money for water/wastewater infrastructure. It also directed infrastructure funding to specific projects — including a $15 million project in King, N.C.  and $5.1 million in funding for infrastructure projects in other communities.

H 966 had included another provision redirecting $2 million from a DEQ fund to address contamination associated with poly- and perflourinated (PFAS) compounds such as GenX to a number of unrelated projects.  Over  $800,000 of the PFAS funding would have been used to extinguish a conservation easement in a Burlington park that had generated mitigation credits for N.C. Department of Transportation projects. (That provision was described in an earlier post.)

For the time being, the new infrastructure funding will not be available and funds in the PFAS Recovery Fund will remain dedicated to that purpose.

Action: 2019 Budget

July 9, 2019. The 2019 legislative session got off to a very slow start. Few bills moved  before the May 9 deadline for substantive bills to pass one chamber of the legislature to stay alive. The pace picked up in the last month as both the House and Senate passed versions of a budget bill (House Bill 966)  and then agreed on a final budget. Governor Cooper immediately vetoed the budget bill for reasons unrelated to environmental provisions. (The Governor’s veto statement  criticized the legislature’s budget priorities; refusal to expand the state’s Medicaid program had been one sticking point.) This blogpost looks at some of the environmental provisions in the budget.

Funding Related to Emerging Contaminants Such as GenX.

♦ Reallocation of state funding appropriated in 2018 to extend water lines in areas with well contamination caused by GenX. In 2018, the legislature allocated $2 million to DEQ’s Division of Water Infrastructure to help local governments extend water lines to properties affected by contamination caused by per‑ and poly‑fluoroalkyl substances (PFAS) including GenX.  Section 12.13 of the  2019 budget bill  reallocates those funds for a number of projects unrelated to PFAS. In February 2019, Chemours entered into a settlement agreement  with DEQ that requires the company to provide a replacement water supply to any person whose well has PFAS contamination above the health advisory level. Under the agreement, the replacement water supply means connection to a public water system unless the well owner declines or DEQ finds it would be prohibitively expensive or unsafe.

♦ Additional funds to address emerging contaminants through water quality permitting. The budget funds five new positions in DEQ to address emerging contaminants. The positions include two new engineers to work on issuance and renewal of Clean Water Act wastewater discharge permits.

State Funding to Eliminate a Conservation Easement and Buy Back Mitigation Credits.   In an unusual (and unprecedented) provision, the legislature earmarked over $800,000 to eliminate a conservation easement on a completed stream restoration project.  The project, restoration of Little Alamance Creek in Burlington, was completed in 2012-2013. The creek had impaired water quality; the restoration project, which included replanting stream bank vegetation, was designed to improve water quality in the creek. The stream restoration project also generated mitigation credits intended to offset the stream impacts of N.C. Department of Transportation (NCDOT)  road construction projects. (Federal and state water quality permits often require the project developer to offset stream or wetland impacts by funding restoration of similar natural resources.)

The City of Burlington donated property for the conservation easement, which runs through a Burlington city park, but later had both aesthetic and public safety concerns about the completed stream restoration.  According to city staff, trees planted along the stream had not overtaken the shrubby undergrowth as expected. City officials were unhappy with the appearance of revegetated stream bank and worried that the vegetation provided cover for criminal activity.

The  budget provision requires DEQ to dissolve the conservation easement on Little Alamance Creek and reimburse funds used to purchase mitigation credits generated by the project. If NCDOT received mitigation credits from the Little Alamance Creek project as expected,  the department will have to buy  mitigation credits from other stream restoration projects to stay in compliance with its road construction permits. In that case, taxpayers will have paid for the mitigation credits twice since there is no possibility of recovering funds already spent on restoration of Little Alamance Creek. If a private developer received any of the credits generated by the project, the state buyback would be used to replace the developer’s credits. The cost is significant; the budget appropriates $837,755.00, but also directs DEQ to draw on other department funds if the actual cost exceeds the amount appropriated.

Removal of the conservation easement may allow the City of Burlington to alter the stream bank vegetation. It isn’t clear whether the city has a specific plan or what impact the changes will have on the stream’s water quality.

Delay Update of  State Water Quality Permits for Large Animal Operations. One of the policy provisions in the budget delays renewal of the water quality permit that covers most large animal operations. DEQ had completed a nearly year-long process to update and reissue the state water quality permits for large animal operations, including swine farms. The general permits set operating conditions for different categories of farms to protect surface water and groundwater from contamination by animal waste. The recently finalized general permits included some new or modified conditions, including a requirement for swine farms to monitor groundwater quality around waste lagoons located in the 100-year floodplain.

The N.C. Farm Bureau filed an appeal to challenge some of the conditions on the new general permits. In Section 12.19, the budget bill prevents DEQ from covering farms under the new general permits until 2020.   In effect, the bill delays enforcement of any new conditions and allows farms to continue to operate under the old permits while the N.C. Farm Bureau pursues its appeal.

During the delay, the budget provision directs DEQ to study whether water quality general permits should be adopted under the rule making procedures in the state’s Administrative Procedures Act. Note: As a practical matter, the process DEQ used to develop and finalize the general permits exceeded the basic public notice and hearing requirements of the APA.

Late 2018 — Bits and Pieces

January 30, 2019.  A fall trip to South Africa, followed closely by the holidays,  made October-December something of a blur.

Leopard: Thornybush Game Preserve (photo G.Whaley)

Leopards, lions, and zebra – oh my!  Also elephants, giraffes, rhinos (of the non-political variety), Cape buffalo,  baboons, uninvited monkeys at lunch, hippos, wildebeests, hyenas, warthogs and an unexpected (to me) penguin colony.

African Penguin: The Cape

 

 

 

Also, a different set of environmental challenges: drought and drinking water supply; rhinoceros poaching; managing heavily vegetated bush and grassland habitat; and protecting the Cape’s extraordinary biodiversity.

 

 

 

Back to  North Carolina developments in late 2018:

Executive Order on Climate Change and Clean Energy: On October 29, 2018, N.C. Governor Roy Cooper issued an executive order on climate change and clean energy. Executive Order 80 supports the 2015 Paris Agreement and sets several goals for the state to meet by 2025:

  1. Reduce state greenhouse gas emissions by 40% from 2005 levels.
  2. Increase the number of zero-emission vehicles in the state to 80,000.
  3. Reduce energy use per square foot in state-owned buildings by 40% from 2002-2003 levels.

The state has already made significant progress toward the first goal as a result of the 2002 Clean Smokestacks Act and 2007 adoption of a renewable energy portfolio standard (REPS) for major energy producers. (For background on the REPS law, see an earlier  post on the first of several unsuccessful attempts to repeal the REPS standard.) Those two pieces of legislation had already begun to reduce the state’s greenhouse gas emissions by transitioning more base power generation from coal to natural gas  (which produces lower levels of greenhouse gas emissions, although not emission-free)  and greatly increased development of solar and wind generation facilities.

The most direct effect of the executive order will be on state government operations. The order provides new guidance to cabinet agencies on vehicle use; energy efficiency in state facilities; and priority for  greenhouse gas reduction/clean energy  in planning and allocation of economic incentives. Some state agencies received very specific direction —  the Department of Transportation to encourage use of zero-emission vehicles and the Department of Commerce  to  use state incentives to recruit and develop clean energy businesses.

Executive Order 80 also  directs all  cabinet agencies to evaluate the impact of their activities on climate change and to

integrate climate adaptation and resiliency planning into their policies, programs and operations (i) to support communities and sectors of the economy that are vulnerable to the effects of climate change and (ii) to enhance the agencies’ ability to protect human life and health, property, natural and built infrastructure, cultural resources and other public and private assets…

Executive Order 80  now gives agencies ranging from  NCDOT  to  DEQ and commissions like the Environmental Management Commission and Coastal Resources Commission clear direction to consider the impacts of climate change in exercising their planning and regulatory authority.

It is too early to know how  agencies will respond to the mandates in Executive Order 80.  The order creates a new N.C. Climate Change Inter-Agency Council chaired by the Secretary of Environmental Quality to coordinate efforts to reduce greenhouse gas emissions, increase clean energy development and improve state government’s energy efficiency. It also requires preparation of a N.C. Climate Risk Assessment and Resiliency Plan by March 1, 2020; that process will be led by DEQ  and involve stakeholder input.

It isn’t difficult to imagine ways state agency decision-making might consider climate change adaption and resiliency. Rising sea levels and more frequent flood events could factor into planning the location of future roads and other public infrastructure as well as design standards for private development.  An executive order cannot conflict with existing statutes or give a state agency authority it does not already have under N.C. law, but it can guide the use of existing authority.

December 2018 Legislative Session (Third Extra Session):   Senate Bill 469  made two changes to state stormwater policies.  Section 26 (a) of the bill amended language in G.S. 143-214.7(b2)  that already allowed development in a  buffer required under stormwater rules as long as stormwater from the entire developed area was collected, treated and discharged in the buffer.  The provision has been amended to:

1. Apply to development in any buffer required under state stormwater rules. Previously, the exception applied only to development in buffers adjacent to shellfish waters, high quality waters, and outstanding resource waters, which are among the most highly protected waters in the state.

2. Require discharge of the collected and treated stormwater through a “segment” of the buffer. The law had originally simply required discharge of the treated stormwater through the buffer.

The more significant change may be in Section 26(b) which amends G.S. 143-214.7(b3). The law already prevented application of state stormwater rules to previously developed properties and limited application of the rules to property being partially or entirely redeveloped:

(b3) Stormwater runoff rules and programs shall not require private property owners to install new or increased stormwater controls for (i) preexisting development or (ii) redevelopment activities that do not remove or decrease existing stormwater controls. When a preexisting development is redeveloped, either in whole or in part, increased stormwater controls shall only be required for the amount of impervious surface being created that exceeds the amount of impervious surface that existed before the redevelopment.

Senate Bill 469 added a new sentence to extend those limitations to local government stormwater ordinances whether those ordinances implement state stormwater standards or have been adopted under other authority. Those “other” sources of authority could include federal Clean Water Act permits issued to local governments for municipal stormwater discharges and local government power under state law to regulate land use.  In the first instance, the new limitation on stormwater controls for redevelopment projects may conflict with the local government’s federal permit. In the second instance, the amended law could frustrate local government efforts to reduce flooding by requiring better stormwater management  as properties are redeveloped.

An example of the second problem: A developer bulldozes an old shopping center built before stormwater rules applied with the intent of redeveloping the property as condominiums.  The amended law prevents the local government from requiring any stormwater controls for the condominium project unless the new development creates more impervious surface (paved or built-on areas) than the shopping center had.  Then, the local government could only require control of stormwater from the additional impervious surface — likely to be a very small percentage of the total new development project.

The limits in G.S. 143-214.7(b3) on applying state stormwater rules to redevelopment projects had effectively shut the door on reducing stormwater pollution from areas developed before the rules existed. Extension of those limitations to local government ordinances under any source of local government authority will also  make it more difficult for cities and towns to reduce future flooding after rain events. That is a public safety as well as a water pollution problem.

One other note on Senate Bill 469.  The bill, titled “An Act to Make Various Technical, Clarifying, and Conforming Changes to the General Statutes and Session Laws”,  included substantive changes like the stormwater amendments in Sec. 26 that could not by any normal definition fall into any of those categories. In the past, the legislature has been careful not to include substantive amendments in a bill designated by title for “technical, clarifying and conforming changes”.  The moral of the story: do not judge a bill by its title.

Today: The  2019 Regular Session of the North Carolina General Assembly convenes.

Hurricane Florence: Deja Vu All Over Again

September 23, 2018.   A serious storm accompanied by flooding has many environmental impacts and most are all too familiar to North Carolina from past storms.  Once the immediate rescue phase has ended, the Department of Environmental Quality (DEQ)  has a larger role in hurricane response than the public may realize. Some of the environmental challenges:

♦  Disabled water treatment and wastewater treatment systems. Large storms can disable environmental infrastructure like water and sewer systems because of lost power, inundation by flood waters or runoff overwhelming the sewage collection system. Any of those impacts can result in release of contaminants, including untreated sewage.

♦  Disposal of storm debris.  Wind damage and flooding creates a huge volume of storm debris: downed trees; construction debris; drywall and flooring removed from flooded homes; sodden carpet; ruined furniture and appliances; animal carcasses; and hazardous materials like paint, solvents, pesticides and other chemicals. Debris from older structures may contain asbestos. DEQ’s Division of Waste Management (DWM) works with local governments to pre-approve new landfills for vegetative waste and non-hazardous construction debris before a storm hits.  But hazardous materials damaged or uncovered by the storm can complicate and slow debris removal because those materials need to be separated for disposal. Improper disposal of hazardous materials can cause groundwater or surface water contamination; burning hazardous materials with other debris may expose nearby residents to dangerous air quality conditions and create a risk of explosion.  Failing to separate and properly dispose of hazardous materials also has a cost;  the Federal Emergency Management Agency (FEMA) will not  reimburse the state for debris collection and disposal that violates federal hazardous waste laws. Unfortunately, storms never sort debris and efforts to clean out flooded homes often create piles of trash that include both hazardous and non-hazardous materials.

♦  Release of contaminants from landfills and dumps (legal and illegal) inundated by floodwaters; spills from above-ground and underground petroleum storage tanks; and releases from other types of chemical storage facilities.  The U.S. Environmental Protection Agency (EPA) emergency response program works with the state DWM and Division of Water Resources (DWR) to  respond to these environmental incidents.

♦ Clearing debris from rivers, streams and drainage ditches.  Large storms also deposit downed trees, limbs, and other debris into streams, rivers and drainage ditches obstructing flows.  Removal of debris from streams and rivers  may require a federal permit under Section 404 of the Clean Water Act. (Any method of removal that would disturb the stream bottom or riverbed requires a permit.) The U.S. Army Corps of Engineers issues the Section 404 permits, but  state water quality and coastal management staff also have a role and frequently help determine whether the permitting requirements apply to a particular stream or drainage feature. DEQ provides a guidance document on stream clearing to help citizens understand how to do the work without violating federal rules.

♦  Animal waste. Updated information on swine waste lagoons (as of noon on September 22, 2018):

Animal Operations – Swine Lagoons

Category Total # Facilities/Lagoons
Structural Damage 5 facilities/5 lagoons
Discharges (Overtopping) 28 facilities/34 lagoons
Inundation, no indicated discharges 7 facilities/9 lagoons
Freeboard 0″ 10 facilities/12 lagoons
Freeboard 0-3″ 25 facilities/35 lagoons

The table above comes from DEQ’s Dashboard. The first category, waste lagoons with structural damage, need repair to stop the release of swine waste through the damaged  lagoon wall. Lagoons that are overtopping (the second category) have been inundated by flood waters and are spilling wastewater mixed with floodwater over the top of the lagoon wall. The other three categories describe swine waste lagoons that are full or nearly full, but not actively releasing wastewater to the environment.

All of these lagoons (and an unknown number of additional lagoons with only slightly more storage capacity) may continue to be a concern for weeks or months beyond the storm. The problem is this:  the entire swine waste management system depends on the ability to regularly spray wastewater from the lagoon onto a crop as fertilizer. Spraying down the lagoon level makes room for storage of new waste coming from the hog houses.  State permits for lagoon and sprayfield systems limit spraying to the amount the receiving crop can use as a nutrient (to avoid contaminating groundwater with excess nitrogen or phosphorus) and prohibit spraying swine waste on already-saturated ground to avoid runoff.  Under those permit conditions, spraying down lagoon levels may not be possible for some period time after the storm has ended because surrounding agricultural lands remain saturated.  In the past, the tension between a need to lower lagoon levels to prevent additional breaches and the environmental impact of spraying wastewater on saturated soil has led to some difficult and controversial policy decisions. Farms have also sometimes needed to remove animals for a period of time because of the lack of waste storage capacity.

Although poultry operations get less media attention than the swine farms, flooding also sweeps poultry waste into floodwaters and creates similar problems for post-storm land application of poultry waste onto agricultural fields.

Coal ash releases. Historically, much of the coal ash produced by coal-burning power plants in N.C. has been disposed of in open ponds that work on the same principle as the swine waste lagoons – solids go to the bottom of the pond and water levels are lowed periodically by pumping from the top layer of water. The difference is that Duke Energy has Clean Water Act permits allowing discharge of water from the top of the coal ash ponds into a nearby river, lake or stream.  Permit conditions  limit the volume to levels that will not cause a violation of water quality standards in the water body receiving the discharge. Hurricane Florence has already caused a significant breach in the dam separating Sutton Lake from the Cape Fear River. The lake receives a wastewater discharge from the Sutton plant’s coal ash pond. DEQ has also documented erosion/wash-out of coal ash from older, now vegetated coal ash basins at the Lee Plant (Goldsboro). DEQ has posted video of the Sutton site and photographs of washover from the Lee ash basin on the Dashboard coal ash page.

Going forward, the question will be what kind of repair/restoration/remediation may be required to address the coal ash releases.

Disposal of dead animals. Disposal of a large number of animal carcasses following a storm has environmental implications, but falls under the responsibility of  the State Veterinarian in the Department of Agriculture and Consumer Services. To date, the Agriculture department has reported over  3 million poultry and more than 5,000 swine killed by Florence and those numbers may rise.  Under state law (G.S. 106-403), dead animals can be buried under three feet of soil or disposed of in any other way approved by the State Veterinarian.  Some of the alternative disposal methods used in the past include composting (particularly of poultry); rendering for use in animal feed; and incineration.  In the past, burial has raised  concern about potential for groundwater contamination since many of the large animal operations affected by flooding are located in southeastern counties with naturally high water tables.   Although G.S. 106-403 requires a burial site to be at least 300 feet from a  “flowing stream or other public body of water”, the law doesn’t expressly take groundwater impacts into consideration.

Dam failures and landslides.  DEQ’s Division of Energy, Mineral and Land Resources responds to dam safety emergencies and oversees repair/reconstruction work under the state’s Dam Safety Act. The same division has a role in responding to landslides. Heavy rains associated with Florence caused several landslides in mountain counties that closed roads, but thankfully did not cause any deaths.

Rebuilding.  Looking beyond storm response and cleanup, rebuilding in coastal areas becomes a significant permitting challenge for state water quality and coastal management agencies.  Once floodwaters recede,  staff in the state Division of Coastal Management (DCM) helps FEMA do initial damage assessments to distinguish repairable buildings from those that have more than 50% structural damage and require reconstruction. Some number of the  heavily damaged/destroyed  structures will  raise  policy issues about whether or  how to allow rebuilding.  Older, “nonconforming”  structures that did not meet current building code, zoning or coastal development rules before the storm may  not be able to meet those standards to rebuild.  Some of the most difficult post-storm reconstruction decisions involve buildings that cannot meet current stream buffer or oceanfront setback requirements.

DCM uses special emergency permits developed in response to past storms to allow routine reconstruction to begin quickly. The emergency permits cover reconstruction of buildings and accessory structures (such as docks) that can be rebuilt in their previous location and within the same footprint.

Update note: The original blogpost has been revised to clarify that the dam between Sutton Lake and the Cape Fear River breached rather than the coal ash pond.

Constitutional Amendment Update

September 16, 2018. On August 24, 2018, the N.C. legislature reconvened to change two of the proposed constitutional amendments on the November ballot. This blogpost concerns one of the two, House Bill 913  (Bipartisan Ethics and Elections Enforcement),  discussed in an earlier blogpost.   H 913 proposed to amend the Constitution to change the method for appointing members of the State Ethics and Elections Board, but also gave the legislature power to appoint the members of all other state boards and commissions.

Governor Cooper challenged H 913  and another proposed constitutional amendment concerning the method for filling  judicial vacancies (Senate Bill 814). On August 22, 2018, a three-judge panel issued an order in the Governor’s favor and barred the printing of ballots showing the two  amendments as described in the bills. Rather than appeal the court’s order, the legislature reconvened for a brief special session and adopted revised versions of both amendments.

The legislature revised the commission appointment bill (now Session Law 2018-133)  to eliminate provisions affecting appointments to all state boards and commissions. As a result, the constitutional amendment that will appear on the November ballot will not affect appointments to commissions like the Environmental Management Commission  with responsibility for environmental standards. Consistent with the N.C. Supreme Court decision in McCrory v. Berger, the Governor will continue to appoint a majority of those commission members. The proposed  amendment now only deals with appointments to the State Board of Ethics and Elections Enforcement.

A note on what remains of the constitutional amendment:  The amendment continues an ongoing legal battle between the Governor and the legislature over appointments to the state Ethics and Elections Enforcement Board.  Until 2017, an  Ethics Board enforced state ethics laws and a separate Elections Commission provided election oversight. The Governor appointed all of the members of the Ethics Board and a majority of the members of the Elections Commission. In 2017, the legislature made a first attempt to limit the Governor’s authority  by adopting legislation combining the two into a single board and limiting the Governor’s appointment authority by requiring appointments to be made from a list of nominees identified by legislators.  Governor Cooper sued to challenge those changes as unconstitutional.  The proposed constitutional amendment would circumvent legal challenges by establishing the appointment process for the Ethics and Election Enforcement Board in the Constitution. The proposed amendment reduces the size of the combined board from nine to eight.  All of the members would be appointed by legislative leaders, equally divided between the majority and minority parties.

Constitutional Amendments

August 1, 2018. The General Assembly drafted six proposed amendments to the N.C. Constitution that will be on the November ballot for voter approval (or not). Two of the proposed amendments could affect environmental and natural resource policy.

Appointments to boards and commissions. House Bill 913  (short title: Bipartisan Ethics and Elections Enforcement) proposes to amend the Constitution to give the General Assembly more power to appoint members to state boards and commissions. Notwithstanding the bill title, the amendment could affect the makeup of every state board and commission —  including those responsible for environmental policy.

In North Carolina, citizen commissions — made up of unpaid volunteers rather than state employees — have a significant role in environmental policy. Commissions adopt most of the environmental rules enforced by the Department of Environmental Quality (DEQ). Some of the important environmental commissions: the Environmental Management Commission (water quality, air quality, waste management rules); Coastal Resources Commission (rules regulating coastal development and protecting public access to beaches and coastal waters); Marine Fisheries Commission (regulation of commercial and recreational fishing); and Oil and Gas Commission (regulation of oil and gas exploration and development).

Historically, laws creating commissions gave the Governor power to appoint all or a majority of the members.  But in recent years, the General Assembly has tried to exercise greater control  over some commissions by increasing the number of legislative appointees. In 2015, former Governor Pat McCrory  sued the General Assembly over laws giving the legislature power to appoint a majority of three  environmental commissions — the Coal Ash Management Commission, Mining Commission and Oil and Gas Commission. The governor argued the laws giving the legislature power to select a majority of  commissioners violated the N.C. Constitution’s requirement for executive, legislative and judicial powers to  be entirely separate. The N.C. Supreme Court ruled in the governor’s favor.  An earlier post  discusses the 2016 decision in McCrory v. Berger, which held that too much  legislative control over appointments violated the N.C. Constitution’s “separation of powers” clause by interfering with the governor’s constitutional responsibility to manage those executive branch agencies.

House Bill 913 responds to both the McCrory v. Berger decision and a more recent  N.C. Supreme Court decision, Cooper v. Berger,  striking  down a law similarly limiting the Governor’s power to appoint members to  a combined State Board of Elections and Ethics Commission. Section 1 of House Bill 913 would amend the Constitution to allow legislative leaders to appoint all of the members of the new Board of Ethics and Elections Enforcement.  But other sections of the bill propose broader amendments to the N.C. Constitution’s separation of powers clause and to the Governor’s Constitutional powers to give the legislature unbounded authority to determine  how appointments are made to all boards and commissions.

The new language seems intended to sidestep the McCrory v. Berger decision by inoculating the legislature against a separation of powers challenge based on legislative appointment of all or a majority of the members on an executive branch commission. Section 2 of House Bill 913 proposes to directly amend the separation of powers clause in the N.C. Constitution (Article 1, Sec. 6). The language of the amendment appears below.  Part (1)  below is the existing constitutional language; the underlined language in part (2) would be added if the amendment is approved:

“Sec. 6. Separation of powers.
(1) The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
(2) The legislative powers of the State government shall control the powers, duties,responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.”

Section 4 of House Bill 913  proposes to also amend Article III, Section 5 of the N.C. Constitution to  limit the governor’s executive power over commissions by making those powers subject to the legislature’s authority to determine how commission members will be appointed.

The constitutional amendment would not directly alter appointments to any state commission other than the Board of Ethics and Election Enforcement. But the broad change to the separation of powers clause could free the General Assembly to change laws governing other commission appointments in the future to give the legislature all or a majority of appointments.

Hunting and fishing. Senate Bill 677 (short title Protect Right to Hunt and Fish) proposes to add a new Section 38 to Article 1 the N.C. Constitution to protect the right to hunt and fish:

“Sec. 38. Right to hunt, fish, and harvest wildlife.
The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”

The amendment  would allow regulations to protect species and maintain fish and wildlife populations for future harvest, but those would seem to be the only constitutionally protected types of regulation other than “laws concerning trespass, property rights or eminent domain”. The  limit on adoption of other types of hunting and fishing regulation  appears to apply to laws enacted by the General Assembly as well as  rules adopted by state agencies and local government ordinances. The impact of the constitutional amendment could be significant since the  language does not allow for other common types of fishing and hunting regulation such as:

♦  Public safety regulations. State laws and local ordinances regulating hunting  for protection of public safety — such as restrictions on hunting within city limits or hunting close to  houses and schools — could be unconstitutional under the amendment.  The legislature rejected a floor amendment that would have added language allowing for public safety regulation of hunting and fishing.

♦ Regulation to protect fish and wildlife habitat. The amendment may also raise questions about the constitutionality of  regulations affecting  gear used by fishermen if the purpose of the regulation is to protect habitat (such as submerged aquatic vegetation or salt marshes) rather than fish or wildlife species.

♦ Regulation of hunting and fishing methods. A number of state laws and wildlife regulations  limit certain types of hunting; time of day; the nature and use of traps; or put other restrictions on hunting activities.  For example, Wildlife Resources Commission rules restrict use of  dogs in certain hunts. A number of counties have additional local laws regulating use of lights in hunting;  imposing county-specific time of day restrictions; setting standards for traps; etc. It isn’t clear that those kinds of regulations would be constitutional under the proposed amendment since they don’t obviously fit within the two categories of constitutionally protected regulation. It also isn’t clear how a decision about the constitutionality of  regulations would be affected by the amendment language specifically (but not exclusively) protecting  “traditional methods” of hunting and fishing.

The vote. These two proposed constitutional amendments and four additional amendments on other subjects will appear on the November ballot. Each amendment will require the approval of a majority of voters to pass.

Note: This blogpost has been corrected to note that there will be six (rather than five) proposed amendments to the N.C. Constitution on the November ballot.

2018 Environmental Legislation Part 2: Environmental Bills

July 28, 2018.  In addition to the environmental policy changes in the budget, several  bills amended environmental laws. Among the more significant changes:

Stormwater. Sec. 14 of House Bill 374  (2018 Regulatory Reform Act) directs the Environmental Management Commission  to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.

When a water body chronically violates a water quality standard, the  Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the  water quality violation –  a “total maximum daily load”. The TMDL caps  total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit  for the pollutant;  the sum of all the permitted discharges  cannot exceed the cap.  In areas like the Jordan Lake watershed,  stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution  by also reducing the release of nutrients in runoff.  The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL  through a federal stormwater discharge permit.

The provision is the most recent  in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the  bill specifically targets  local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local  enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed  requirements in state law since the state develops the TMDLs and issues the NPDES  permits.

Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development  near sensitive coastal waters to  control stormwater  to reduce pollutant runoff.  The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s  stormwater permit for construction of the subdivision.  Once the subdivision has been significantly built out,  the developer typically transfers ownership and control over all common areas — including the stormwater system —  to a homeowners’ association.  To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action.  But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.

The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a  subdivision with excess impervious surface  will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of  non-compliance at the time responsibility for the system transferred from the developer to the HOA.

The provision may have unintended consequences. First,  it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before  January 1, 2017 to be in compliance with the stormwater rules.

Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711.  The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.