Category Archives: Parks

The NC Senate: Budget 2015

June 18, 2015.  Yesterday, the  N.C. Senate  took a first vote to approve a Senate version of House Bill 97  ( 2015 Appropriations Act).   The Senate received H 97 from the House of Representatives on May 22. The Senate  released its  alternative draft of the appropriations bill three days ago and quickly moved H 97  through Senate appropriations committees.  The Senate takes  a very different approach to funding state government than the House, but the Senate version of H 97 also contains many more “special provisions” — changes to existing law that go beyond finance and appropriations.  Some of the more significant environmental provisions in the Senate budget bill  (not by any means a complete list) below.

First, the Senate revisits the organization of state natural resource programs.  Sec. 14.30 of the Senate bill would combine  DENR’s natural resource programs (Division of Parks and Recreation, State Parks, Aquariums, the N.C. Zoo and the Museum of Natural Sciences) with cultural resource programs (such as the Museum of History and state historic sites)  in a new Department of Natural and Cultural Resources.  DENR would become the Department of Environmental Quality. Sec. 14.31  requires the two departments to study  whether  the Albemarle-Pamlico National Estuary Program,  state Coastal Reserves, the Office of Land and Water Stewardship,  the Office of Environmental Education and Public Affairs, the Division of Marine Fisheries and the Wildlife Resources Commission should also be moved to the new Department of Natural and Cultural Resources.

Other changes proposed in the Senate bill by subject (parenthetical descriptions are mine) :

COAL ASH

Sec. 29.18 (Beneficial use of coal ash) requires the Utilities Commission to report to several legislative committees by January 2016 on “the incremental cost incentives related to coal combustion residuals surface impoundment for investor-owned public utilities” including:

(1) Utilities Commission policy on  incremental cost recovery.

(2) The impact of the current policy on incremental cost recovery on utility customers’ rates.

(3) Possible changes to the current policy on incremental cost  recovery  that would promote reprocessing and other technologies that allow the reuse of coal combustion residuals stored in surface impoundments for concrete and other beneficial end uses.

Although a bit opaque, the Senate seems interested in the possibility of allowing electric utilities  to recover (through charges to consumers) the costs associated with making coal ash in surface impoundments available  for beneficial use.  Duke Energy has previously told legislators  that much of the coal ash in North Carolina impoundments  would require additional processing to be usable in concrete manufacturing.

COASTAL ISSUES

Sec. 14.6 (Use of sandbags for temporary erosion control) amends standards installation of sandbags for  erosion control on ocean and inlet shorelines. State rules now allow installation of sandbags only in response to erosion that imminently threatens a structure. The Senate bill allows a property owner to install sandbags to align with existing sandbag structures  on adjacent properties without showing an imminent erosion threat on their own property.

Sec. 14.10I (Strategies to address beach erosion) requires the Division of Coastal Management to study and develop a strategy “preventing, mitigating and remediating the effects of beach erosion”.

ENERGY 

Sec 14.29  (Federal energy grants) prohibits DENR from applying for grants from two federal programs – the State Energy Program Competitive Grant Program and the Clean Energy and Manufacturing Grant Program.

FISHERIES

Sec. 14.8, Sec. 14.10A and Sec. 14.10C  (measures to increase shellfish restoration and cultivation)

Sec. 14.8  directs the Division of Marine Fisheries to work with commercial fishermen,  aquaculture operations, and federal agencies to open additional areas in Core Sound to shellfish cultivation leasing.

Sec. 14.10A  directs DMF and the Division of Coastal Management to cooperate in  development of a new, expedited  CAMA permitting process for oyster restoration projects. The provision  also  authorizes DMF to  issue scientific and educational activity permits to nonprofit conservation organizations engaged in oyster restoration.

Sec. 14.10C Amends G.S. 113-202 to allow a lease for use of the water bottom to also cover fish cultivation or harvest devices on or within 18″ of the bottom. (Devices or structures not resting on the bottom or extending more than 18″ above the bottom will continue to require a water column lease.)

Sec. 14.10F (Joint fisheries enforcement authority) repeals the Division of Marine Fisheries authority to enter into a joint enforcement agreement with the National Marine Fisheries Service. The joint agreement allows DMF  to receive federal funding to enforce federal fisheries regulations in state waters.

SPECIAL FUNDS

Sec. 14.16  continues a recent trend of eliminating “special funds” that hold fees or other revenue dedicated for a specific purpose outside the state budget’s General Fund. The Senate bill eliminates special funds for mining fees,  stormwater permit fees, and UST soil permitting fees and moves the fee revenue into the General Fund.

STREAM AND WETLAND MITIGATION

Sec. 14.23 (Limiting the state’s role in providing stream, wetland, riparian buffer and nutrient mitigation)  requires DENR’s Division of Mitigation Services to stop accepting fees in lieu of mitigation in the Neuse, Tar-Pamlico and Cape Fear River basins within 30 months.  The provision then allows DENR (with the Environmental Management Commission’s agreement) to also eliminate the state in-lieu fee programs in all other river basins after June 30, 2018.

DENR’s  in-lieu fee program allows a developer to pay  a fee for mitigation  required as a condition of state and federal development permits. DENR  then contracts with private mitigation providers for the necessary mitigation. Payment of the fee transfers responsibility for providing the mitigation from the developer to DENR. Under a Memorandum of Agreement with the U.S. Army Corps of Engineers, the state’s in-lieu fee program can be used to satisfy stream and wetland mitigation required as a condition of federal Clean Water Act permits.

Eliminating  the State in-lieu fee program seems to eliminate the fee-for-mitigation approach as an option for developers. The burden would be back on the developer to find acceptable mitigation through a private mitigation bank or to plan and manage an individual mitigation project.  The change may slow some development projects that can now move  ahead based on the Corps of Engineers’ agreement to accept payments to the state in-lieu fee program as satisfying  federal mitigation requirements.

UNDERGROUND STORAGE TANKS

Sec. 14.16A (Elimination of the Noncommercial UST Trust Fund) phases out the state’s Noncommercial UST Trust Fund which reimburses property owners for the cost of cleaning up contamination from leaking underground petroleum storage tanks. The Noncommercial UST Trust Fund has  benefitted homeowners with soil and groundwater  contamination caused by home heating oil tanks and property owners  with contamination caused by USTs  used to store fuel for personal use — as on a farm. Under the Senate provision, the Noncommercial Fund could only be used for leaks reported before August 1, 2015 and claims for reimbursement filed by July 1, 2016. The Noncommercial Fund  would be eliminated for any petroleum releases  reported or claims made after those dates.

WASTE MANAGEMENT

Sec. 14.20 (Life of site landfill permits) amends G.S. 130A-294 to replace the current  5 or 10 year landfill permits with a “life of site” permit to cover landfill operations from opening to final closure. The provision would require permit review every five years.

Sec. 14.21 (Study of local government authority over waste collection and disposal services) directs the legislature’s Environmental Review Commission to study local authority over solid waste management including local fees; ordinances on waste collection and processing; cost to local government to provide solid waste services; and efficiencies or cost reductions that might be realized through privatization.   Solid waste collection and disposal services are entirely financed and provided by local governments;  many already contract with private entities for waste collection or landfill management.  It isn’t clear what the study might lead to since the legislature doesn’t have a role in  providing or financing local waste management services.

Sec. 14.22  (Privatizing landfill remediation) directs DENR to privatize the assessment and remediation of at least 10 high priority pre-1983 landfill sites. For several years, DENR has received a percentage of the state’s solid waste disposal tax  to fund assessment and cleanup of  contamination associated with landfills and dumps that closed rather than meet environmental standards that went into effect in 1983. Some legislators have expressed concern about the slow pace of remediation (and the resulting high fund balance). Note: Most state-funded remediation programs have a slow ramp-up in spending since it takes time to set up a new program and assess the sites.

WATER QUALITY

Sec. 4.5  (Nutrient management) earmarks $4.5 million from the Clean Water Management Trust Fund for a  DENR study of “in situ strategies beyond traditional watershed controls” to mitigate water quality impairment. The provision specifically mentions impairment by “aquatic flora, sediment and nutrients”, suggesting the study may be a continuation of the legislature’s effort to replace watershed-based nutrient management programs with technological solutions.

In 2013, the General Assembly suspended implementation of watershed-based nutrient management rules in the Jordan Lake watershed and funded a pilot project to test the use of aerators to reduce the impacts of excess nutrients on water quality. Sec. 14.5 allows extension of  the  pilot project contracts for another two years and delays implementation of the Jordan Lake watershed rules an additional two years or one year beyond completion of the pilot project, whichever is later.

Sec. 14.25 (State Assumption of permitting under Section 404 of the Clean Water Act) directs DENR to  hire a consultant to plan and prepare a state application  to assume the  federal permitting program under Section 404 of the Clean Water Act.   Sec. 404 requires a permit to fill waters or wetlands that fall under Clean Water Act jurisdiction. The U.S. Corps of Engineers issues Sec. 404 permits,  but a state can assume Sec. 404  permitting authority under certain conditions.  The U.S. Environmental Protection Agency oversees  404 permitting and would have to approve a state program. In a state that assumes Sec. 404 permitting, EPA retains authority to review  permit applications; a permit cannot be issued over an EPA objection.

Although several states have explored the possibility of assuming Sec. 404 permitting authority, only Michigan and  New Jersey have approved Sec. 404 programs. Individual states have reached different conclusions about the costs and benefits for a number of reasons. One may be cost — there are no federal grant funds to support a state 404 permitting program.   The Clean Water Act also prohibits state assumption of permitting in  tidal waters; water bodies used for interstate and foreign commerce;  and wetlands adjacent to both categories of waters. The U.S. Army Corps of Engineers would continue to have permitting authority in those waters and wetlands.

Sec. 14.26 (Transfer Sedimentation Act implementation to the EMC) eliminates the Sedimentation Pollution Control Commission and transfers responsibility for implementation of the Sedimentation Act to the Environmental Management Commission.

Once the Senate takes a final vote on House Bill 97, the bill goes to a conference committee to resolve the (considerable) differences between Senate and  House versions of the bill.  Few of the environmental provisions described above appear in the House version of the bill — although that doesn’t necessarily mean all of the Senate additions will be opposed by the House in conference negotiations.

ERC Recommends Environmental Legislation for 2014

April 10, 2014. In March, the N.C. General Assembly’s Environmental Review Commission (ERC) provided a first look at legislative proposals for the 2014 session. See an earlier post for more detail on the draft bills  presented to the ERC on March 12, 2014.  Yesterday, the ERC  voted to  approve a legislative package that included all of the proposals first presented in March.  There had been few changes  since  then;  the  bill on state review of engineering plans was the only environmental bill that had revisions. The ERC also approved one additional bill to remove small  areas currently included in several state parks and natural areas.

A few notes from yesterday’s discussion of the draft bills.

Stormwater: The ERC  endorsed a bill to repeal a 2013 legislative provision  that required the state’s water quality program to exclude gravel areas from the calculation of  impervious surfaces on a development site. (See the  March 19  post for more on impervious surfaces and  stormwater requirements.) Repealing the 2013 provision will again allow water quality staff  to make individual judgments about the permeability of  different combinations of aggregate material, substrate and installation method. ERC co-chair Ruth Samuelson noted a  DENR  concern about lack of funding for a  study required by the bill and suggested funding could be  addressed during the legislative session.

Isolated wetlands: The ERC also approved a  bill to allow somewhat greater development impacts to “isolated” wetlands without a state water quality permit. (Isolated wetlands fall outside federal Clean Water Act permitting jurisdiction.) The ERC bill would raise the thresholds for triggering prior state review of isolated wetland impacts and  reduce  mitigation requirements for larger projects  that require  an individual state permit.  The March 19 post provides more detail on the isolated wetlands bill draft; the bill has not changed since then.

Rep. Samuelson mentioned a  DENR  concern about raising the permitting threshold for wetlands in the eastern part of the state to one acre, but there was no further  explanation or discussion of the department’s concern.  (No one from DENR spoke during the meeting.) Rep. Samuelson also noted  a question from the  N.C. Homebuilder’s Association  about the relationship between the  ERC bill and  review of surface water and wetland rules under the Regulatory Reform Act of 2013.  Samuelson suggested the ERC may need to  think more about how the two fit together.   (More on the rule review and re-adoption requirements here.)   The N.C. Homebuilder’s Association has pushed unsuccessfully for  legislative  repeal of the state’s isolated wetlands rules in the past and sees the rule review process as another way to remove the rules.  The real question being asked by the Homebuilder’s Association is whether the ERC bill (a compromise that reduces isolated wetland permitting requirements without eliminating  protection completely) may stand in the way of complete repeal of the rules.

Review of engineering work: Since March, legislators made  some  technical and clarifying changes to the proposed bill on state and local permit review of engineering plans. Those changes largely involve definition or clarification of  terms used in the bill.

Local environmental ordinances: The bill draft approved by the ERC  remained unchanged since March. The bill immediately repeals a 2013  moratorium on local environmental ordinances  that impose stricter standards than  federal or state environmental rules. (The 2013 provision sunsets on October 1 2014 in any case.) The bill  approved by the ERC continues to focus on a narrow set of circumstances where a local ordinance actually conflicts with state or federal standards and identifies one  specific conflict between local fertilizer ordinances and rules adopted by the Department of Agriculture and Consumer Services. Otherwise, the bill directs  state environmental agencies to continue  to review new local ordinances for actual conflict with state rules and report back to the General Assembly in the fall of 2014 and again in 2015.

See an  earlier post for more on the controversy over local environmental ordinances;  the relationship between federal, state and local standards; and a 2013 Senate bill supported by the N.C. Homebuilders Association  that proposed much tighter limits  on local authority. Discussion in the ERC meeting suggests members may be making different assumptions about the scope of the proposed ERC bill. Legislators  who had worked on the bill draft consistently talked about identifying local ordinances that “infringe” on state authority; questions from other ERC members sometimes talked in terms of local ordinances that “overlap” state rules.

Reporting wastewater spills:  This  bill draft also remained unchanged since the March meeting. The bill requires reporting of a wastewater spill to DENR and to the public within 24 hours after the spill reaches surface waters — clarifying the duty to report to DENR and reducing the time for public notice from 48 hours to 24 hours.   At the March ERC meeting, Rep. Pricey Harrison  suggested requiring immediate reporting to DENR; that change was not made.

“Terminating” executive orders.  The ERC also approved a bill to “terminate” an executive order issued by Governor McCrory concerning  enforcement of standards for vehicles transporting solid waste.  Co-chair Samuelson indicated the bill may also become a vehicle for legislative action on executive orders issued by previous governors.   A future  post will go into greater detail on  the  controversy surrounding  the McCrory executive order and constitutional issues raised by a legislative attempt to “terminate” executive orders.

Removal of land from state nature and historic preserves: The  one new bill considered by the ERC yesterday makes adjustments to  lands included in several state parks and natural areas.  The General Assembly sometimes removes areas from state parks, natural areas  and historic sites to reflect  boundary adjustments or to accommodate road rights of way. The ERC bill would delete a total of  just under 1 acre from  Crowder’s Mountain State Park; the deletions appear to be boundary adjustments.   The bill removes  approximately 1/4 acre from Jockey’s Ridge State Park, referencing a surveyed easement for the Town of Nags Head.  The bill also deletes  7.26 acres from Gorges State Park for a state highway project and  3.39 acres from Lumber River State Park for a secondary road project. The final deletion would remove an unspecified  acreage  in the Lower Haw  State Natural Area in Chatham County. (The bill references the tract by deed book and page number, but has placeholders for both the acreage and specific property description.)  For the Lower Haw  State Natural Area deletion, the  bill  simply refers to removal under G.S. 113-44.14.  The  statute allows DENR to recommend removal of a state park if  “the major purposes of a park are not consistent with the purposes of [the State Parks Act]”.

Note: All of the the bill drafts recommended by the ERC  can be found  in the ERC  handouts for April 9.

To be continued:  The ERC did not take up any legislation related to coal ash. A special ERC meeting has been schedule for 1:30 p.m. on April 22 to receive an update on coal ash, but ERC co-chair Ruth Samuelson could not say whether legislation would be considered at that meeting.