Beyond Coal Ash – Other Environmental Bills

For those of you making scorecards and tracking sheets for  2014 legislation, a list of other bills on energy and the environment filed  so far; some  bills have already  been  introduced in both chambers:

Environment. The first six bills listed below   were recommended by the House/Senate Environmental Review Commission (ERC).    The last, House Bill 1105,  came out of a House/Senate legislative study commission on land development.

House Bill 1081 (Senate Bill 765)  addresses several  concerns about  state and local permit review of engineering plans.  An engineer submitting an innovative design proposal to a state or local permitting agency will have the opportunity to elevate the  permit review to a supervising engineer.  The bill also allows the permitting agency to charge the applicant for a third-party engineering review if the agency does not have a staff engineer qualified to review the innovative design.  The bill makes other less significant changes. The bill requires  permit reviewers to clearly distinguish necessary design changes  from suggested changes and  cite the law or rule that makes a design change necessary for permit  approval. The bill also directs permitting agencies to review working job titles for permit reviewers  to insure only PEs have “engineer” job titles. For more on the history of these proposals, see an earlier post.

House Bill 1057 (Senate Bill 757)  requires the Department of Environment and Natural Resources (DENR) to study several  issues related to transfer of water from one river basin to another  or “interbasin transfer” (IBT):  1.  Whether  temporary and emergency interbasin transfers, including transfers to relieve water shortages caused by drought, should be regulated differently  than long-term interbasin transfers; 2. Whether interbasin transfers between river sub-basins should be regulated differently  than interbasin transfers between major river basins. and 3. Whether there are types of interbasin transfers that should be exempt from state approval or  other regulatory requirements.

Interbasin transfers  usually  involve piping water from a drinking water source in one river basin to  a water system in another, although some large water systems cross river basin boundaries  and need an IBT just to serve  system customers. An  IBT  of  2 million gallons per day or more requires a certificate of approval from the Environmental Management Commission (EMC). Rather than using the boundaries of the  17 major state river basins,  the  IBT law requires  a certificate for any transfer among  38 sub-basins.  Over the last seven years, a series of legislative changes have made the IBT approval process increasingly difficult.   The House and Senate IBT bills signal an interest in reexamining some of the restrictions.

House Bill 1058 (Senate Bill 756) directs the General Assembly’s Program Evaluation Division (PED) to study: 1.  the benefits of combining water and sewer systems into larger, regional entities; 2. potential incentives for systems to merge; and 3. the possibility of  allowing one system to apply for grants  on behalf of  a less efficient  system  based on a commitment to purchase, interconnect  or enter into a joint management agreement with the less efficient system. The idea of encouraging merger of  small water systems and wastewater  systems into larger, more efficient utilities  has popped up in just about every legislative session for a decade or more.  The biggest obstacles tend to be local resistance and the financial burdens  associated with the takeover of  a small, inefficient system often badly in need of capital investment.  The last of the three PED study issues (allowing one system to apply for grants on behalf of a system targeted for takeover) may be focused on removing the financial disincentives.

Senate Bill 737 (Amend Isolated Wetlands Regulation). “Isolated wetlands”  fall outside the federal Clean Water Act permitting program for wetland impacts because the wetlands do not have a connection to navigable waters.  (Congress adopted the Clean Water Act  under its  authority to regulate interstate commerce and  limited federal regulatory jurisdiction to navigable waters used in interstate commerce.)   In response to pressure from realtors and developers to eliminate state  protection of isolated wetlands,  S737  allows additional  impacts  to isolated wetlands without  prior state permit review.  State water quality rules  now allow  development impacts  to  isolated wetlands below specific thresholds to be “deemed permitted”.  S737 raises those thresholds from 1/10th of an acre to 1/3 of an acre west of Interstate 95 and from 1/3 of an acre to 1 acre east of Interstate 95.  (I-95 has long been used as the  dividing line between the wetter eastern counties and drier piedmont/western counties.)  DENR has expressed concern that raising the  threshold to 1 acre east of I-95 will effectively eliminate review of projects impacting isolated wetlands in the eastern part of the state. S737 also reduces the amount of mitigation required for isolated wetland impacts (from a 2:1 ratio to 1:1) and eliminates the  practice of giving more mitigation credit for creation or restoration of wetlands  than  for preservation of existing wetlands.

Senate Bill 738 (Clarify Gravel Under Stormwater Laws). In 2013, the N.C. Homebuilder’s Association successfully lobbied for legislation directing  the state stormwater  program to  treat gravel areas as “pervious” (meaning the surface allows water to percolate through to the soil beneath) and exclude  them  from the calculation of built-upon area on a development site.  The amount of built-upon area determines the level of stormwater control required for the project, so excluding gravel areas from the calculation  potentially  reduces stormwater costs.  The 2013  provision  (included in  Session Law 2013-413)  also directed the ERC to study “how partially impervious surfaces are treated in the calculation of built-upon area under [the stormwater] programs”.    Ironically, the ERC study found: 1.  no consensus on  the definition of  “gravel”; and 2. evidence that permeability is a function of several factors, including the nature of the substrate and method of installation as well as the surface material itself.  Instead of further weakening stormwater control requirements,   the  ERC bill recommends repeal of the 2013  provision declaring  gravel areas to be pervious and  funds a study of the permeability of different surface materials to be done by the North Carolina State University Department of Biological and Agricultural Engineering.

Senate Bill 734  (Authority to Adopt Certain Ordinances).  The  Regulatory Reform Act of 2013 (Session Law 2013-413)  put  a one-year moratorium on local environmental  ordinances and directed the ERC  to study  local authority to adopt environmental ordinances. The  moratorium/study  provision represented a compromise  between the House and the Senate after the Senate  passed  a bill (Senate Bill 112) putting significant restrictions on local environmental ordinances.

An ERC working group looked at the issue  of local authority through the lens of actual conflict between local ordinances and state or federal environmental  rules.  The legislators identified only one  conflict — local ordinances on use of fertilizers regulated by the N.C. Department of Agriculture and Consumer Services.  Based on the working group recommendation, the ERC  proposed  a limited bill addressing state  versus  local authority to regulate fertilizer use. The bill also  directs  DENR and the Department of Agriculture to  report back in  November 2014  and again one year later on any  local ordinances that  “impinge on or interfere with” state rules.  Supporters of S112   almost certainly want something more.  It seems clear the intent of S112 was to prevent  local government from imposing  additional environmental requirements on developers  and not simply  to avoid conflict with state rules.

House Bill 1105  amends the section of the  state Sedimentation Pollution Control Act that allows DENR to delegate  authority to a local sedimentation program. The amendment transfers responsibility for enforcement of previously approved erosion and sedimentation control plans from DENR to the local government when DENR approves a local program.


House Bill 1055   would appropriate a total of  $5 million to North Carolina State University and UNC-Charlotte  for research on renewable energy, energy storage, and coal ash reuse.  The bill sponsor,  Rep. Mike Hager,  spent much of the 2013 session   in an unsuccessful effort  to repeal  the state’s renewable energy portfolio standard (REPS).  (You can find the first of several  posts on the 2013 REPS repeal bill here.)  Some of the 2013 combatants  have already signaled an intent to  continue the battle for  repeal  of the REPS standard.    That  very fresh legislative history makes  Rep. Hager’s  proposal to  fund research on renewable energy  somewhat surprising.

Senate Bill 786, (The Energy Modernization Act).  The bill proposes so  many changes to state law on  oil and  gas exploration and development that it merits a separate  post. (To follow.)