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.