May 7, 2015. Yesterday, the N.C. House approved House Bill 760 (Regulatory Reform Act of 2015) after adopting several amendments. House Bill 760 has attracted a lot of media attention because of the renewable energy provisions. Less attention has been paid to part of the bill that will significantly weaken use of riparian buffers to reduce water pollution.
An earlier post described the original riparian buffer provisions in House Bill 760. By amendment, the House changed the provision on measurement of riparian buffers adjacent to coastal wetlands. The new language requires the buffer to be measured from the normal water level, recognizing that some coastal wetlands regularly flood on the tides. The bill continues to have confusing language on local government authority to adopt riparian buffer ordinances outside of the river basins and watersheds covered by state buffer rules. Amendments improved those provisions a bit, but I am not sure even the amended bill allows for all of the circumstances in which a local government may need to adopt a buffer ordinance to meet state and federal environmental standards.
But in what may be the most under-discussed section of House Bill 760, the bill still creates an exceptionally broad exemption from riparian buffer rules that apply in the state’s nutrient impaired river basins and watersheds. None of the amendments to House Bill 760 narrowed the scope of the buffer exemption. In areas covered by state nutrient sensitive waters (NSW) buffer rules, the bill exempts all tracts of land platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.) The only condition on the exemption:
Other than the applicable buffer rule, the use of the tract complies with either of the following:
a. The rules and other laws regulating and applicable to that tract on the effective date for the applicable buffer rule set out in subsection (a) of this section.
b.The current rules, if the application of those rules to the tract was initiated after the effective date for the applicable buffer rule by the unit of local government with jurisdiction over the tract and not at the request of the property owner.
The conditions don’t narrow the exemption much — if at all. Enforcing (a) requires someone in the present to determine whether use of the property complies with laws and rules in effect as much as 15 years ago. And (b) appears to be the “Get Out of Jail Free” card that allows a property owner to claim the exemption based on meeting all current local ordinances other than the buffer rule. Unless I am missing something, the property owner can just opt out of the riparian buffer requirement as long as a development project meets other current standards.
The exemption applies whether the riparian buffer rules are enforced by the state or by a local government with delegated authority to enforce the buffer requirements. The exemption also seems to apply to both undeveloped properties and to properties already developed and currently in compliance with the buffer requirements. If so, owners of developed properties would be free to clear vegetation and create new encroachments in the buffer. (Failure of the bill to distinguish between developed and undeveloped properties in applying the exemption criteria may have led to some unintended consequences — although the exemption language is so aggressively broad, I am not sure that is the case.)
The buffer rules are part of broader water quality restoration plans designed to meet federal Clean Water Act requirements. The Clean Water Act requires the state to adopt a Total Maximum Daily Load (TMDL) — a cap — for any pollutant causing impaired water quality. A number of state water bodies, including the Neuse River estuary, Falls Lake and Jordan Reservoir, have had impaired water quality due to excess nitrogen and phosphorus. For those river basins and watersheds, the nutrient management rules provide the underpinning for TMDLs that set nitrogen and phosphorus reduction targets.
North Carolina ‘s longstanding policy has been to share the burden of pollution reduction among all of the major nutrient sources so the rules include tighter controls on wastewater dischargers; measures to reduce the amount of nitrogen and phosphorus leaving agricultural lands; and stormwater controls and riparian buffer requirements to reduce nutrient runoff from developed areas. Each set of nutrient management rules reflects a long negotiation involving all of the interests affected — local governments, agriculture, landowners, real estate developers, environmental organizations — to balance the pollution reduction burden.
The House Bill 760 buffer exemption has the potential to upset the balance of the nutrient management plans and jeopardize the state’s ability to meet nutrient reduction targets in the TMDLs. Understanding the impact of the exemption will require the answers to a number of questions yet to be asked or answered in the legislative debate:
1. How many properties in each nutrient sensitive river basin or watershed potentially qualify for the exemption and what percentage of riparian area could be affected?
2. How much nutrient reduction has the Division of Water Resources credited to protection of the riparian buffers in the approved TMDLs?
3. Would the exemption affect the state’s ability to meet nutrient reduction goals for these impaired water bodies?
4. Would the state have to ask for more nutrient reductions from other sources (such as wastewater treatment plants and agricultural operations) to make up the difference?
The bill now goes to the Senate, which has more often been the starting point for legislation to limit use of stormwater controls and riparian buffers to restore water quality in impaired waters.