Tag Archives: beach erosion

2015 in Review — Legislation

January 12, 2016. Some trends in environmental legislation:

Limiting Local Government Authority. After several years of legislation limiting the regulatory authority of state environmental agencies, the General Assembly turned to local government.

  Senate Bill 119  (Session Law 2015-264)  may have the practical effect of  eliminating local government  authority to regulate shale gas operations under  zoning, land use, stormwater, health,  and sedimentation control ordinances.  In 2014,  Session Law 2014-4  preempted local ordinances that  “would prohibit or have the effect of prohibiting oil and gas exploration, development, and production activities, or use of horizontal drilling or hydraulic fracturing for that purpose”.   But the 2014 law created a presumption that local zoning and land use ordinances applicable to other types of development  (such as zoning, setbacks, buffers  and stormwater standards) could also apply to shale gas operations.

Senate Bill 119  rewrites  the 2014 provision to completely  preempt  local ordinances.  The new Oil and Gas Commission (replacing the Mining and Energy Commission) now has power to preempt the application of  local development ordinances even if  the ordinance would not preclude shale gas development or conflict with state standards.  Although the presumption  in favor of zoning and land use ordinances still appears in the law, the 2015 amendments direct the Commission to preempt a local ordinance at the request of the shale gas developer if the  drilling operation has received  state/federal permits and the Commission finds that exploration and development

…will not pose an unreasonable health or environmental risk to the surrounding locality and that the operator has taken or consented to take reasonable measures to avoid or manage foreseeable risks and to comply to the maximum feasible extent with applicable local ordinances.

In effect,  the Oil and Gas  Commission can set aside any  local ordinance and substitute its judgment about risk for that of local elected officials. Preemption of local ordinances could have several implications —

1. Complete preemption of local ordinances may  leave gaps in basic regulation of shale gas activities  since state standards do not address a number of   issues normally dealt with by local government such as noise,  traffic, solid waste disposal (trash — not drilling waste), and open burning.

2.  The law potentially allows preemption of local  stormwater ordinances needed to  meet state water supply watershed protection standards; comply with federal stormwater permits; or  minimize flooding.    The Environmental Management Commission has adopted stormwater rules  for shale gas operations, but those  rules expressly recognize that additional stormwater standards may apply to a particular operation and reserve the right to apply those standards — whether implemented by DEQ or by a local government.  The new preemption language in Senate Bill 119 does not recognize the possibility that local stormwater ordinances may be required under state or federal law.

3.  The provision  raises a question about implementation of  sedimentation control requirements through local sedimentation programs. The state’s Sedimentation Pollution Control Act allows cities and counties to take over implementation of the sedimentation program. In areas with local programs, sedimentation control requirements are set and enforced through local ordinances.  Nothing in Senate Bill 119 prevents the Oil and Gas Commission from preempting a local sedimentation ordinance.

♦  House Bill 44  included two provisions limiting local government authority to adopt or enforce other types of development ordinances —

Section 2 bars  local governments from enforcing a “voluntary” state environmental rule,  but defines “voluntary” rule in a creative way to include any state rule  that has  been repealed;  has been adopted, but is not yet in effect; or has been “temporarily or permanently held in abeyance”.  The last category would cover the  Jordan Lake water quality rules that have been delayed by legislative action.  Preventing  local enforcement  of existing Jordan Lake stormwater ordinances  may have been the main purpose of the provision, but it could also raise questions about the enforceability of other local ordinances. No one has  attempted to catalog all of the local ordinances that include requirements that once appeared in a now-repealed state rule or are proposed to be included in a new state rule that has not yet been adopted.   The House Bill 44 provision seems to assume that local environmental ordinances always follow  state regulatory action; it  ignores direct grants (by the General Assembly) of local government authority to  adopt ordinances to protect  public health and the environment.  For more on the implications of this provision,  see an earlier post.

Section 13  limits local government authority to adopt riparian buffer requirements.  The bill defines “riparian buffer”  to mean any setback from surface waters —  which could include a setback imposed for flood control.  (The definition seems broader than other  language in the provision  specifically referring  to  riparian buffers for water quality protection.) Under the bill, a local government cannot adopt and enforce a riparian buffer ordinance for water quality protection  that  goes beyond requirements of state or federal law or the conditions of a state or federal permit unless the EMC  approves the ordinance.

Shielding Evidence of Possible Environmental Violations

♦  House Bill 765  (the Regulatory Reform Act of 2015)  creates a new legal  privilege for information contained in an environmental audit report. (Companies use environmental audits  to identify  compliance problems;  opportunities for waste reduction;  and operational changes to reduce environmental impacts.)   Information covered by the privilege does not have to be shared with regulators and cannot be used by  regulatory agencies to document an environmental violation in  a civil enforcement case.   The privilege does not apply in a criminal  case, but the vast majority of environmental enforcement actions rely on civil rather than criminal penalties. See the section on environmental audit privilege/self-disclosure immunity in this earlier post for more on the scope of the privilege.

♦   House Bill 405    allows an employer to take legal action against an employee who 1. enters a “nonpublic” area of the workplace;  2.  takes photographs, makes recordings, or copies records without permission; and 3.  uses those documents “against the interest of the employer”.   The employer can sue the employee  for  monetary damages,  including legal fees and a $5,000 per day penalty.   Animal rights activists referred to House Bill 405  as the “Ag-Gag” bill — a term used for legislation targeting activists who go undercover on farms and in  processing facilities to document animal cruelty violations. But House Bill 405 is not limited to agricultural workers or documentation of animal cruelty. The bill could also be used to punish an employee who documents  illegal dumping of hazardous  waste and shares the evidence with regulators or the media.  See an earlier post for more on House Bill 405.

Lessening the Consequences for Some Environmental Violations.

♦  House Bill 765 grants immunity from civil penalties and fines for environmental violations that are voluntarily disclosed to state regulators.  The bill defines “voluntary” disclosure;  immunity would not apply to violations  documented  through information the company has a legal duty to report under state or federal law, for example. The bill limits how often a person (or company) can claim self-disclosure immunity — no more than once every two years; twice in a five-year period; and three times in a ten-year period.  The bill never defines “civil penalties and fines”, leaving a question about the breadth of the immunity.  For example, the bill is silent on whether “civil penalties and fines” includes natural resource damages such as  fish kill damages assessed for a wastewater spill. For a more detailed comparison to past state and present U.S. Environmental Protection Agency enforcement policies on self-disclosed violations, see an earlier post.

♦  A provision in the budget bill (S.L. 2015-241) limits the total civil penalty for ongoing  violations of the Sedimentation Pollution Control Act to $25,000 if: 1. the violator had not previously been assessed a penalty for a sedimentation violation (which does not necessarily mean the person has not previously violated the law); and 2. the violator addresses damage caused by the violations within 180 days.  Previously, the law allowed the Department of Environmental Quality to assess a maximum penalty of $5,000 per violation, per day for continuing sedimentation violations. The fact that the meter on civil penalties could run until the violator addressed the problem created a powerful incentive for quick response — even though DEQ rarely assesses the maximum penalty. Quick action to correct a violation  translates to  less stream damage from uncontrolled erosion and sedimentation.  The recent amendments have the somewhat perverse effect of assuring the violator that  sedimentation violations can go uncorrected for nearly six months without resulting in an increased penalty.  The provision also means that committing numerous sedimentation violations on the development site will result in the same penalty as a single violation.  The new cap on continuing violation penalties also applies to penalties assessed by local sedimentation programs.

♦ House Bill 765  amends existing state laws to allow broader use of “risk-based”  cleanup  of environmental contamination. In a risk-based cleanup, the person responsible for environmental  contamination is not required to fully restore contaminated soil and groundwater. A risk-based  cleanup plan relies on a combination of limited remediation and land-use controls (such as deed restrictions) that prevent exposure to contamination  remaining on the site after the partial cleanup.  Groundwater cleanup costs represent a significant consequence of violating environmental laws — often exceeding penalties assessed by regulators — so  allowing a  more limited cleanup reduces the cost of violating the law.  (It also means the groundwater may remain contaminated and unusable for a very long time.)

House Bill 765 extends the benefits of lower cost, risk-based cleanup to several categories of  contaminated sites that had been  excluded  under  the state’s  2011  law  allowing risk-based remediation of  industrial contamination. Two of those categories broaden the use of risk-based remediation in ways that may undermine incentives for present environmental compliance:

—  New contamination incidents.  House Bill 765 repeals statute language  limiting use of risk-based remediation to contamination  reported  before the 2011 risk-based remediation law went into effect.  In 2011, allowing risk-based cleanup of industrial sites was seen as an incentive for remediation of properties with longstanding contamination  —  often resulting from activities that had been lawful at the time. Remediation costs remained  a significant incentive for present-day compliance with environmental standards. Removing the date restriction means that a  risk-based cleanup will now be an option for new contamination incidents resulting from activities violating current environmental laws.

—  Sites contaminated by petroleum releases from above-ground  storage tanks (ASTs).  There has long been a risk-based cleanup program for petroleum underground storage tanks (USTs),  but UST operators also have to meet extensive regulatory standards to  prevent future pollution incidents.  House Bill 765 gives AST owners  the benefit of risk-based cleanup without regulatory standards to prevent future releases.

Eliminating or Streamlining State Permit Requirements for Environmental Infrastructure

♦ The state budget (S.L. 2015-241)  includes a provision that changes landfill permitting, allowing issuance of a single “life of site” permit to cover construction and operation of a landfill that  often has a 30-year lifespan.  State rules had previously  required review and approval of the entire landfill site before construction, but also required each 5 or 10-year phase of the landfill to have a construction and operation permit.   Landfill construction will continue to be done in phases for economic and practical reasons,  but the “life of site permit” eliminates state compliance review for each new  phase of the landfill.   The change also seems to close the door on  new permit conditions for construction or operation of later landfill phases in response to scientific or  technological developments. The budget provision does not set minimum landfill inspection requirements in place of the 5 and 10-year phased permit reviews.

♦ House Bill 765 creates a new private permitting option for septic systems and other small on-site wastewater systems now permitted by local health departments. The provision  allows  a property owner to hire an engineer and soil scientist to approve the location and design of the system. The local health department will receive information about the system, but the engineer’s approval substitutes for a permit. It isn’t clear that  the laws allows the health department to prevent construction of an engineer-certified system based on inconsistency with state siting and design standards.

Skepticism about State Water Quality Rules. The 2015 General Assembly continued to focus on water quality rules and particularly those affecting real estate development activities — such as stormwater standards, wetland and stream mitigation requirements, and riparian buffer protection rules.

The state budget includes a special provision further delaying implementation of the Jordan Lake water quality rules for  another 3 years or one year beyond completion of the Solar Bee pilot project (whichever is later). See an earlier post  here on the  2013 legislation creating the pilot project. The rules had been developed by the state’s Environmental Management Commission to address poor water quality  caused by  excess nutrients reaching the lake in wastewater discharges and  runoff from agricultural lands and developed areas.  Since adoption of the rules, the legislature has taken repeated steps over several legislative sessions to delay compliance deadlines in the rules. This session,  the  legislature also barred local government enforcement of stormwater ordinances adopted to comply with the Jordan Lake rules.

♦ House Bill 765  limits  regulatory authority and mitigation requirements for isolated wetlands and intermittent streams. (Isolated wetlands are wetlands that fall outside federal permitting jurisdiction under the Clean Water Act because the wetlands lack a connection to “navigable waters”.)  These provisions continue a several-year legislative trend toward limiting  protections for wetlands and waters to the minimum required under federal law.

♦ Some proposals to significantly roll back other water quality rules (particularly stormwater and  riparian buffer rules) failed this session, but became the subject of legislatively mandated studies. Among the studies required before the April 2016 legislative session: a study of coastal stormwater rules; a study on the feasibility of entirely exempting linear utility projects (such as pipelines) from  environmental standards;  and an Environmental Review Commission study of the  state stormwater program.

Expanding Use of Erosion Control Structures on Ocean and Inlet Shorelines

♦ A   provision in the budget bill  (S.L. 2015-241)  changes state rules on use of sandbag  structures on the oceanfront.  Rules adopted by the N.C. Coastal Resources Commission have limited use of protective sandbag structures to situations where a building faces an imminent erosion threat. (These sandbag  structures are substantial in size and can have many of the same long-term impacts as permanent seawalls; the rules do not apply to sandbags used to prevent water from entering a building during a flood event.)   The budget bill changes the standards to allow an oceanfront property owner to install a sandbag  structure to align with an existing sandbag structure on adjacent property without showing an imminent erosion threat to a building on their own property.

♦ The budget bill also increases the number of terminal groin structures that can be permitted at the state’s ocean inlets from four to six and identifies New River Inlet for location of two of the additional structures. See an earlier post  for more on earlier legislation allowing construction of terminal groins as a  pilot project. The latest provision continues a several-year trend of reducing regulatory requirements for approval of terminal groin projects and increasing the number of projects that can be permitted.

N.C. Environmental Legislation 2015: The Budget

October 9, 2015. Now that the General Assembly has adjourned, a look at legislative actions affecting the environment. First, the state budget for 2015-2017.

Among the most significant impacts:

♦  REORGANIZATION.   The Clean Water Management Trust Fund and the Natural Heritage Program — originally intended to protect and restore water quality and identify important natural areas — have been separated from the environmental protection programs in the Department of Environment and Natural Resources (DENR). The budget transfers the CWMTF, Natural Heritage Program, Museum of Natural Sciences, state park system, N.C. Aquariums and N.C. Zoo from DENR to a newly organized Department of Natural and Cultural Resources. The move combines conservation  and ecological education programs with state historic sites and cultural resources. The new department appears to be organized around management of the programs as public attractions rather than as research and education partners to state environmental protection programs.  As a result of the reorganization, DENR becomes the Department of Environmental Quality (DEQ).

Whatever the merits of the move for facilities like the Museum of Natural Science and N.C. Zoo,  the Clean Water Management Trust Fund and Natural Heritage Program do not  fit the new department’s basic organizing principle. Unlike the “attractions”,  the  CWMTF and Natural Heritage Program provide no public facilities and exist primarily to protect  water quality and identify important natural resources.

The General Assembly created the Clean Water Management Trust Fund (CWMTF) in 1996 to fund projects to prevent water pollution and to restore water bodies already impaired  by pollution.   CWMTF’s  non-regulatory approach complemented water quality rules  protecting state waters.  Originally,   CWMTF grants funded acquisition of riparian buffers to reduce polluted runoff into streams and rivers and  extension of sewer lines where failing  septic  systems threatened surface water quality.  In moving CWMTF, the 2015 budget severs its connection with other state efforts to restore and protect water quality.  The move follows 2014  legislation diluting the original CWMTF  focus on  water quality protection by authorizing use of the Trust Fund for acquisition of historic sites and buffers around military bases.

The  Natural Heritage Program researches, classifies and inventories the state’s natural resources, including endangered and rare plant and animal species. Information collected by the program can be used to document the conservation value of property and to assess the environmental impacts of projects requiring state and federal environmental permits.  The program has a much closer working relationship to the environmental  protection programs that remain in DENR than to public attractions like the N.C.  Zoo and Aquariums. (Note: The 2013 state budget eliminated the Natural Heritage Trust Fund which had been a source of funding for conservation of important natural areas;   the CWMTF  has become the funding source for those projects as well.)

♦  LANDFILL PERMITTING. The budget changes landfill permitting, allowing issuance of a single “life of site” permit to cover construction and operation of a landfill that may have a 30-year lifespan.  State rules had previously  required review and approval of the entire landfill site before construction, but also required each 5 or 10-year phase of the landfill to have a construction and operation permit.  Moving to a “life of site” permit  reduces the number of permit reviews for each landfill operation, changing the permit fee schedule and cutting funding for the state’s solid waste management program by 20%.  The change also reduces state oversight of landfill operations.  Landfill construction will continue to be done in phases for economic and practical reasons,  but the “life of site permit” eliminates state compliance review for each new  phase of the landfill.   The change also seems to eliminate the possibility of imposing additional permit conditions for construction or operation of later landfill phases in response to  technological developments  or new knowledge  of  risks to groundwater and other natural resources. The  budget provision does not set minimum inspection requirements in place of the 5 and 10-year phased permit reviews.

The bill also creates a legislative study of local government authority over solid waste collection and disposal, including ordinances on solid waste collection;  fees for waste management services; and potential for privatization.  The study suggests the General Assembly may focus next on reducing local solid waste regulation.  That will be a somewhat different discussion, since solid waste disposal has long been a local government responsibility so  local fees and ordinances have a direct connection to city/county collection and disposal services.

 LEAKING PETROLEUM UNDERGROUND STORAGE TANKSThe budget eliminates a state fund for cleanup of petroleum contamination from small  petroleum underground storage tanks (USTs) such as home heating oil tanks.   The Noncommercial UST Trust Fund has assisted property owners with the cost of soil and groundwater remediation caused by leaks from farm, home and small commercial USTs.  The budget allocates additional money to the Noncommercial UST Trust Fund to cover pending claims, but  limits use of the Fund to  cleanup costs associated with leaks reported to DENR by October 1, 2015.  All claims for reimbursement of those costs must be filed by July 1, 2016.

The budget provision also prohibits DENR from requiring removal of petroleum-contaminated soils at noncommercial UST sites that have been classified as low risk.  The  problem —  risk classifications  have been based on groundwater impacts;  a low-risk classification does not mean that contaminated soils on the property pose no health hazard. Current UST  rules require remediation of contaminated soils to levels safe for the intended land use (residential versus nonresidential) without regard to the overall risk classification of the site.  Soil remediation standards have been based on the potential health risks associated with exposure to petroleum-contaminated soil. Adverse health effects may include increased cancer risk since petroleum products contain a number of carcinogens. The budget provision may allow petroleum-contaminated soils to remain on residential properties at levels putting children at particular risk of adverse health effects.

♦ JORDAN LAKE WATER QUALITY RULES. The budget allocates another $1.5 million (from the Clean Water Management Trust Fund) to continue the 2013 pilot project to test use of aerators to improve water quality in the Jordan Lake system. The budget also has a special provision further delaying implementation of the Jordan Lake water quality rules for  another 3 years or one year beyond completion of the pilot project (whichever is later). The rules had been developed by the state’s Environmental Management Commission to address poor water quality  caused by  excess nutrients reaching the lake in wastewater discharges or in  runoff from agricultural lands and developed areas. See an earlier post  here on the  2013 legislation creating the pilot project.

♦ COASTAL EROSION CONTROL.   A special provision in the budget also changes state rules on use of sandbag seawalls and terminal groins in response to coastal erosion.  State coastal management rules have only allowed use of  temporary sandbag seawalls to protect a building facing an imminent threat from erosion. The same rules prohibit construction of the seawall more than 20 feet seaward of the threatened building. (These sandbag seawalls are substantial structures built on the beach in response to oceanfront erosion; the rules do not apply to sandbags used to prevent water from entering a building during a flood event.) The budget bill allows an oceanfront property owner to install a sandbag seawall to align with an existing sandbag structure on adjacent property without showing an imminent erosion threat to any building on their own property.  Since the bill allows construction to align with the adjacent sandbag seawall, the new seawall  may  also be more than 20 feet seaward of any  building. The irony here — a property owner may want to install a sandbag seawall in these circumstances  out of concern that the adjacent sandbag seawall may itself cause increased shoreline erosion.

The budget bill also increases the number of terminal groin structures that can be permitted at the state’s ocean inlets from four to six and identifies New River Inlet for location of two of the additional structures. See an earlier post  for more on earlier legislation allowing construction of terminal groins as a pilot project. Note: No terminal groins have been completed under the original pilot program, so the state does not yet have any data on the actual impacts of these structures.

♦ RENEWABLE ENERGY TAX CREDIT.  The budget bill allows the state’s 35% tax credit for renewable energy projects to sunset on December 31, 2015. A separate bill provides a “safe harbor” for renewable energy projects already substantially underway by that date. Those projects may qualify for a one-year extension of the tax credit. See Senate Bill 372 for more on conditions that apply to the safe harbor extension.

The N.C. Coastal Resources Commission, Sea Level Rise and the Military

October 24, 2013. Governor McCrory has made appointments to  the Coastal Resources Commission (CRC).  Six  new appointees  join four existing CRC members whose terms end June 30, 2014 and one legislative appointee, leaving two legislative appointments still to be made to fill  out the 13-member commission. The press release  on the Governor’s appointments can be found here. A complete list of  current members and contact information  can be found here.

The State of Sea Level Rise Policy in North Carolina.  The new Coastal Resources Commission will  be walking into an ongoing debate over whether — and how —  the state should plan for sea level rise.  You can find an introduction to sea level rise  here.  In March 2010, the  CRC’s  Science Panel on Coastal Hazards  released  a  report on sea level rise on the North Carolina coast.  The Science Panel  reviewed data from several studies of sea level in North Carolina and found that the rate of sea level rise on the North Carolina coast  increased  significantly in  the 20th century.  The Science Panel’s N.C. Sea Level Rise Assessment Report  concluded that the data pointed to a likely  1 meter (39 inch) increase in sea level by 2100.  The 39-inch  projection  represented the middle of three sea level rise  scenarios considered by the Science Panel and would be  consistent with simply continuing the recent relationship between temperature increase and relative sea level rise in North Carolina.  The Science Panel issued a brief  addendum  in April 2012 responding to questions about the methods used in the  2010 report.

For comparison: A number of studies have found that the rate of sea level rise along the North Carolina coast  remained at a fairly consistent  4 inches per century for  hundreds of years before turning upward  in the 20th century. Over the last fifteen years,  sea level on the North Carolina coast  has risen an average of 0.12 inches per year —  or  a rate of  over 12 inches per century.

The Coastal Resources Commission began debating adoption of a  sea level rise policy soon after receiving the Science Panel report.  As developed in a series of public meetings,  the draft policy focused on use of the Science Panel’s sea level rise projection as a planning benchmark. One planning consideration will be location and maintenance of  public infrastructure such as water and sewer lines, water supplies, roads and bridges. Even  an increase of twelve  inches per century can be significant  in coastal areas where  low land elevation, wave action and increased shoreline erosion magnify the flood impact of rising water levels.  (In the next section, you will find a link to  a  National Oceanic and Atmospheric Administration  sea level riser viewer that allows you to see the  land area flooded at different increases in sea level.) The draft policy  did not  propose  any new regulation of private development.

Both the Science Panel report and CRC discussion of a draft sea level rise policy generated opposition  from  coastal  developers, realtors and some local government officials. That opposition led to legislation,  Session Law 2012-202, barring any state agency other than the Coastal Resources Commission from adopting a rate of sea level rise for regulatory purposes and preventing the CRC from taking any regulatory action  before July 1, 2016.  In the meantime, S.L. 2012-202 directed the Science Panel to provide an update of the 2010 report on sea level rise by March 1,  2015.

In response to concerns about  the Science Panel’s  projection,  the CRC removed references to any specific rate of  sea level rise from the draft policy.  In August 2012, the CRC voted  to send the  policy out for public comment as a proposed rule.  The policy then got caught up in a debate  over the appropriateness of  going through rulemaking on a policy that had no regulatory impact.  At the end of  the Perdue administration, the sea level rise policy  remained in rulemaking  limbo. One question for the newly appointed Coastal Resources Commission will be whether  to  revive discussion of planning for sea level rise on the North Carolina coast.

Overlapping the Science Panel’s work,  in 2009 the N.C.  Division of Emergency Management (DEM) began a Sea Level Rise Impact Study  under a  $5 million grant from the National Oceanic and Atmospheric Administration (NOAA).  The  DEM study was designed to look at the impact of different sea level rise scenarios on  natural  resources  and the built environment.  In 2012, the DEM study also met opposition. Political pressure  reportedly  caused DEM to back away from using the Science Panel’s projection (a  39-inch  elevation in sea level  by 2100)  as the worst case scenario in the Impact Study.  (See a May 2012  story by Charlotte Observer reporter Bruce Henderson.)  I have not been able to confirm the range of sea level rise scenarios to be included in the final Sea Level Rise Impact Study.  DEM had  planned  to complete the study by the summer of 2013, but  has not yet released a report. You can find the DEM webpage for the study here.

New Information on Sea Level Rise.  While North Carolina’s sea level rise planning efforts  have stalled, other scientific and planning organizations  continue  to collect sea level rise data, project sea level rise impacts and  develop plans to adapt to rising sea levels.

A  NOAA website showing the potential effect of sea level rise now includes the North Carolina coast.  Maps developed by NOAA’s  Coastal Science Center show  areas  inundated as sea level rises. You can find the sea level rise viewer  at http://www.csc.noaa.gov/slr/viewer/.  To see a visualization of sea level rise on the North Carolina coast, choose North Carolina under the “zoom in”  function on the right-hand side of the webpage.  Once the  aerial photo of the state appears, use the sea level bar on the left-hand side of the webpage to select a  sea level. The bar ranges from current sea level up to 6 feet above  current levels.  With each increase in sea level, the map  shows the land  area  flooded by the encroaching waters of the Atlantic Ocean and coastal sounds.

The most recent report of the International Panel on Global Climate Change, issued in September,  estimates global mean sea level will rise between10 and 32 inches by the end of the century. Those numbers represent an increase over mean sea level rise projections included in the 2007 IPGCC report.   Yale Environment 360, a  publication of the Yale School of Forestry and Environmental Studies, just published a helpful summary of the new  IPGCC report  on sea level rise here. Sea level does not rise at the same rate on all coastal shorelines, however,  and the N.C. Science Panel report explains why  relative  sea level rise on the North Carolina coast will likely be higher than the global mean sea level.

Coastal Military Bases and Planning for Sea Level Rise.  North Carolina has  a number of    military installations  in the coastal area.  In 2010, the Department of Defense (DOD) Quadrennial Defense Review for the first time identified global climate change as a national security concern because of the potential impact on U.S. military installations around the world.  DOD had begun to focus on  the impact of sea level rise on coastal military bases even earlier out of concern that  changes associated with sea level rise (more rapid coastal erosion, rising water tables and salt water intrusion in aquifers)  have the potential to impact  military infrastructure and training facilities.  A 2008  National Intelligence Council assessment concluded that 30 U.S. military installations were at risk of damage from rising sea level.

Some DOD sea level rise assessments have looked specifically at  N.C. military installations. A  2009  sea level rise risk assessment for  DOD  modeled shoreline changes at coastal installations in N.C.  in response to different rates of sea level rise. The consultant’s report  used the Air Force Dare County Bombing Range as an example of the results — between 58% and 100% of the land area of the bombing range could be lost to shoreline changes in response to projected rates of sea level rise. DOD’s environmental research arm, the Strategic Environmental Research and Development Program (SERDP), has several  projects underway to evaluate the impact of climate change and sea level rise on  U.S. military installations.   One SERDP project involves  N.C’s Camp Lejuene Marine Corps Base in Onslow County. You can find a description of the SERDP projects here.

Going in Different Directions?  Setting aside debate about the cause, the U.S. Department of Defense has chosen to assess the vulnerability of coastal military installations to sea level rise and actively plan for those impacts.  The practicality of managing  sea level rise at existing military installations  may  become a factor in future Base Realignment and Closure (BRAC) decisions.  The military’s  response to sea level rise  could have significant implications for North Carolina since seven of the state’s eight military installations are located at the coast.  (Fort Bragg is the one exception.)  But as DOD moves to understand and  plan for  sea level rise, N.C.’s political leadership has turned away from sea level rise planning.  Given the large economic footprint of the state’s military installations (see a 2013 report for the N.C. Department of Commerce), state leaders have increased efforts to support  the military presence in the state.   Right now, those efforts don’t  include cooperative planning  for  sea level rise, but that may become important.

Legislative Wrap-Up V: Miscellaneous

August 14, 2013. Bits and pieces of environmental legislation (air quality, coastal development, sedimentation, renewable fuels tax credit). Many of the provisions discussed below were adopted as part of House Bill 74 (Regulatory Reform Act of 2013), which the Governor has not yet signed into law. The Governor has until August 25th to sign or veto  a bill adopted at the end of the legislative session; if the Governor takes no action, the bill becomes law without his signature.

Appeals of  Air Quality and Water Quality Permits

House Bill 74 (Regulatory Reform Act of 2013) includes two separate provisions that shorten the time for a third party  to appeal an air quality or water quality permit from 60 days to 30 days. (See Section 29 and Section 53.) The time for an applicant to appeal a permit decision has always been 30 days, but a third party (such as  a neighbor, local government or community organization) fell under the  60-day appeal period set in the state’s Administrative Procedures Act . The challenge for third parties is that the appeal period begins to run when the applicant gets notice of the permit decision — not when the third party receives notice.

Air Quality

Local Transportation Mitigation Ordinances.  House Bill 74 ( Regulatory Reform Act)  prohibits local governments from  using a fine or penalty to enforce  certain types of ordinances to reduce the air quality impacts of commuting by car. Section 10.1(a) of the bill adds a new statute section, G.S. 160A-204  (entitled Transportation impact mItigation ordinances prohibited):

“No city may enact or enforce an ordinance, rule, or regulation that  requires an employer to   assume financial, legal, or other responsibility for of the impact of his or her employees’ commute or transportation to or from the employer’s workplace , which may result in the employer being subject to a fine, fee, or other monetary, legal, or negative consequences.”

Section 10.1(b) adds a new G.S. 153A-145.1 that applies the same prohibition to counties.  A  Durham  ordinance requiring large employers to have a plan to reduce commuter miles traveled by employees may be an example of the kind of ordinance the legislation would  affect. The Durham ordinance allows the employer to choose a number of different approaches to reduce commuting by car, including: work-at-home policies; incentives for car-pooling; creation of company van pools; and shower facilities for employees who bike to work.

There was little discussion of the provision as House Bill 74 moved toward adoption,  but the same language appeared in a different House bill titled  Local carbon footprint ordinances (House Bill 677). The  title suggests that lawmakers  linked transportation mitigation ordinances to climate change policy.  In reality, these ordinances mostly have to do with reducing ozone pollution to  meet federal air quality standards.  As much as 70% of the ozone pollution in urban areas comes from motor vehicle emissions and reducing vehicle miles traveled is one way to keep motor vehicle emissions down.  The Durham ordinance talks specifically about the need to reduce nitrogen oxide emissions that contribute to high ozone levels.  Many of the state’s urban areas will be hard-pressed to meet tighter federal air quality standards for ozone while continuing to grow. Failing to meet the ozone standard (“nonconformity” in Clean Air Act language) has significant economic consequences, including loss of federal highway funds and inability to permit new industrial development.  The language in House Bill 74 does not  eliminate the authority for these kinds of  ordinances,  but it  will  make the ordinances difficult to enforce and possibly reduce their effectiveness as a tool to maintain ozone  conformity  in the state’s major metropolitan areas.

Repeal of Heavy Duty Diesel Rules for 2008 and Later Vehicles. Section 25 of House Bill 74 directs the Environmental Management Commission to repeal rule 15A NCAC 02D.1009 (Model Year 2008 and Subsequent Model Year Heavy Duty  Vehicle Requirements) by December 1, 2013. The rule was adopted  by the Environmental Management Commission in 2004 and required model year 2008 and later heavy-duty diesel vehicles to meet California emissions standards. The U.S. Environmental Protection Agency has allowed California to adopt more strict motor vehicle emissions standards than those in federal rules and a number of states have adopted California standards by reference. The EMC adopted the California heavy duty diesel standard because lawsuits delayed the federal standard for several years.  With a final  federal standard  for heavy duty diesel engines in place,  the state rule has become unnecessary. (The final  federal  standard turned out to be  nearly identical to the California standard that the EMC adopted by reference in 2004.)

Open Burning.  Section 28 of House Bill 74 makes a significant change to rules for open burning. Until now, open burning for land-clearing or right of way maintenance has only been allowed on the site being cleared unless the debris was taken to be burned in an air curtain burner,  (Air curtain burners or “fireboxes” provide better control of  smoke and particulate pollution than open burning of woody debris.) The new provision allows land-clearing debris to be transported off-site for open burning and allows that burn site to be used  up to  four times a year. The bill  requires an off-premises open burn to maintain the same setback distance from occupied structures as an  on-site open burn — 500 feet.  The impact on  nearby residents and building occupants may be different, however, if  the off-premises open burn site is used  more often.  The bill also exempts these off-site open burning locations from requirements that would otherwise apply to waste disposal site for land-clearing debris.

Air Quality Permit Terms. Section 29 of House Bill 74 sets the permit term for  most state-issued air quality permits  at eight years.   The term for  an air quality permit issued under Title V of the Clean Air Act  continues to be no more than  five years as required by federal law.

Coastal Development

Ocean and Inlet Erosion Control.  For over thirty years, state coastal policies  generally barred use of hard erosion control structures (like seawalls, jetties and groins) on ocean and inlet shorelines.  In  2011, Session Law 2011-387  made the first significant change in that policy by authorizing  DENR to permit  a limited number of   “terminal groins” under strict conditions.  A terminal groin is an erosion control structure built perpendicular to the shoreline and at the end of a section of beach. Terminal groins are sometimes used to stabilize an inlet shoreline. This year, Senate Bill 151  made several changes to the 2011 law. One of the most significant is a change in the definition of  ”terminal groin” to include projects that involve installation of “one or more” groin structures  or a single groin with  ”a number of smaller supporting structures”.

Although Senate Bill 151 keeps the 2011 limit on the total number of terminal groin projects permitted coast-wide (four), the new definition of “terminal groin” no longer matches the definition used by the U.S. Army Corps of Engineers. Expanding the term to include multiple groins as part of a single project means the law potentially authorizes projects well beyond the scope of a “terminal groin”. Senate Bill 151 also makes it easier  to get a terminal groin  permit by eliminating the need for the applicant to show that: 1.  the project is necessary to protect imminently threatened structures;  and 2. other shoreline stabilization measures  would not be successful. More background on the terminal groin issue and S.L. 2011-387 can be found here.

Local Authority in Public Trust Areas. Another section of Senate Bill 151 clarifies  local government authority to address nuisance conditions on the beach and prevent (or remove) obstructions in public trust areas of the beach. The clarification became necessary because of  a N.C. Court of Appeals decision in Town of Nags Head v. Cherry  that held only the state can take action to  remove a structure on the public trust beach. See an earlier post for background on the Nags Head case.

Notice of CAMA Minor Development Permits.  Section 30 of House Bill 74 eliminates the requirement for newspaper notice of Coastal Area Management Act (CAMA) minor development permits. Notice will still be provided to any person or organization requesting notice of permit applications and by posting a notice at the site of the proposed development. Note: Under CAMA, “minor development”   can still be a significant  construction project.   CAMA  defines “major development”  to include any project that  requires another state or federal approval; occupies an  area of more than 20 acres; involves drilling for or excavating natural resources; or  occupies a structure(s) with a footprint of 60,000 square feet or more. All other development projects are considered “minor development”. As a practical matter, most projects that disturb an acre or  more will be “major development” because of the need for a sedimentation plan approval.

Note: As of  now, Senate Bill 151 has not been signed by the Governor and so has not yet become law.

Sedimentation Act

Local Sediment Programs. The Sedimentation Pollution Control Act  allows  DENR to delegate enforcement of the law to approved local sedimentation programs and many cities and counties have local programs. Section 33 of House Bill 74 resolves a recent question about  the role of the state’s Office of Administrative Hearings (OAH) in appeal of a civil  penalty assessed by a local program for violation of the Sedimentation Act. The bill makes it clear that those appeals  will be decided by the local government  under  the appeal process set out in the local sedimentation program ordinance. Appeals will not go to the Office of Administrative Hearings.

Tax Credit for Renewable Fuel Processing Facilities

House Bill 112 (Modifications to 2013 Appropriations Act)  extends  the tax credit available for facilities built to process renewable fuel. The sunset date for the renewable fuel processing tax credit, G.S. 105-229.16D,  had already been extended several times. Last year, the General Assembly extended the tax credit to facilities in service by January 1, 2014.  Section 11.2 of  House Bill 112 extends the tax credit to facilities in service by January 1, 2017 as along as the developer  signs a letter of commitment with the N.C. Secretary of Commerce by September 1, 2013 and begins construction by December 31, 2013.

A Beach Bill For The Governor

July 19, 2013: The Senate accepted House changes to Senate Bill 151 (Coastal Policy Reform Act of 2013), which means the bill now goes to the Governor. The bill does two things:

1. Changes  existing law on construction of terminal groins for inlet stabilization.  The most controversial part of the bill makes changes to state law on construction of groins to stabilize inlet shorelines. After prohibiting permanent erosion control structures on ocean and inlet shorelines for nearly 40 years, state policy changed in 2011 when the General Assembly amended the Coastal Area Management Act to allow construction of terminal groins at inlets. A terminal groin is a structure built perpendicular to the beach at an inlet or at the end of an island to stabilize the shoreline;  in some cases, the groin also  traps sand moving along the shore to build up the beach behind the groin.

The 2011 legislation, Session Law 2011-387,  followed a 2010 study of terminal groins by the state’s Coastal Resources Commission (CRC). After reviewing the impact of the small number of existing inlet groins in North Carolina and similar projects in other states, the CRC issued a report concluding that terminal groins can have both positive and negative impacts and should only be allowed under very strict conditions. You can find links to the final CRC report and recommendations here.  Because of concerns identified in the report,  S.L. 2011-387 only allowed  four groin projects to be permitted coast-wide  as something of a pilot project. No projects have been permitted  yet.

In the most significant change to the 2011 law,   Senate Bill 151  redefines  “terminal groin” to include projects that could be something else entirely — including a  field of multiple groins.   The new definition of “terminal groin” no longer matches the definition used by the U.S. Army Corps of Engineers  to describe that  particular type of shoreline stabilization project.  Senate Bill 151 changes the definition in state law to include projects involving installation of “one or more” groin structures  or a single groin with  “a number of smaller supporting structures”. The expanded scope of the definition means that the Department of Environment and Natural Resources could permit projects with even greater impacts  than a simple  terminal groin — impacts that were never considered in the 2010 Coastal Resources Commission study.

2. Provides clear authority for beach communities  to address debris, damaged structures, personal property  and other obstructions on the public trust beach. This part of the bill responds to a N.C. Court of Appeals decision in Town of Nags Head v. Cherry  that concluded only the state has the authority to order removal of  nuisance structures from the public trust beach.  An earlier post provides a  more complete  discussion of the  case. Coastal towns had always assumed that their authority to enforce local ordinances –including nuisance ordinances —  extended to the public trust beach (the area between the mean high tide line and the mean low tide line).  In fact, state law specifically recognizes local authority to regulate many activities on the public trust beach and the charters for some coastal towns extend into the water. The Court of Appeals decision, however,  made a distinction between ordinances generally and those specifically intended to protect public trust rights  and held that only the state could act to protect those rights. The bill returns the law to what many in both state and local government had always believed it to be — shared state and local authority to protect public rights of access to the beach and to address conditions that create a health and safety hazard on the beach.

The Highway and the Sea

Highway 12  extends from mainland Dare County south  across Oregon Inlet (by way of the Bonner Bridge) to Hatteras Island.    The road travels  through Cape Hatteras National Seashore and Pea Island National Wildlife Refuse before reaching the Village of  Rodanthe at the southern end of the island.    At  several points, the island narrows to a ribbon between the Atlantic Ocean and brackish ponds in the wildlife refuge.

Highway 12 to Hatteras aerial

Photo credit: County of Dare / Foter.com / CC BY-NC-SA

For decades, the state  has cleared, relocated, rebuilt and repalred storm-damaged sections of  the Hatteras Island highway. On March  19  2013, N.C. Gov. Pat McCrory issued an executive order  again declaring  a state of emergency  for  N.C. Highway 12 to allow use of state and federal emergency funds to repair Hurricane Sandy damage on Hatteras.  Repair costs for the most recent damage have been estimated at $8-10 million.

In 2010, the state  made  a commitment  to perpetually maintain Highway 12 as the main transportation link to Hatteras Island — without  assurance that it is technically possible and without  knowing the cost.  The commitment was  sealed   when the N.C. Department of Transportation (NCDOT)  decided  to replace the aging Bonner Bridge over Oregon Inlet  with a new bridge built in a parallel location.  Bonner Bridge carries Highway 12 from mainland Dare County across Oregon Inlet to Hatteras Island;  unless Highway 12  continues south on Hatteras Island,  traffic coming off the new  Bonner Bridge  will have nowhere to go.

In making the Bonner Bridge replacement decision, NCDOT looked at a number of other alternatives — including a sound-side bridge that would connect to Hatteras Island at the island’s midpoint (rather than bringing traffic directly south from Nags Head) and expanded ferry service in place of a bridge.   NCDOT cited a number of reasons for choosing  a new Oregon Inlet bridge and maintenance of Highway 12 as the preferred  transportation access to Hatteras Island —     including  the high cost of a sound-side bridge.  But it is also clear that  Dare County citizens  and local government officials   pushed  for continued road access from mainland Dare County to  Hatteras Island.

As  the state was deciding to go all in to  continue the historic road  access to Hatteras Island,  a combination of storm damage and shoreline erosion was  making it increasingly difficult — and expensive — to  keep  Highway 12 open.   In 2003, Hurricane Isabel breached Hatteras Island – creating a  small  inlet connecting the Atlantic Ocean to the waters of Pamlico Sound behind the island.  NCDOT  filled the Hurricane Isabel breach, but when the area breached again in  2011  NCDOT  built  a temporary bridge over the new inlet.   The storm that reopened the Isabel breach, Hurricane Irene, also opened  a second breach  to the south. The most recent damage occurred in October of 2012 when Hurricane Sandy overwashed the temporary bridge and  caused the highway to buckle and overwash  in  several places south of the temporary bridge.

Hwy 12_Oct 2012_Mirlo Beach

Highway 12 at Mirlo Beach (October 2012). Photo: The Virginian Pilot.

The Cost

In the last 25 years, the state has spent over $23 million (in state and federal funds) to repair the most threatened sections of Highway 12  on Hatteras Island.  That figure does not include  the  additional $8-10 million  needed to repair the October 2012 Hurricane Sandy damage.   (WRAL News  has compiled  a  25-year history of repair costs for the Hatteras Island sections of Highway 12  from information provided by NCDOT.)   The raw numbers don’t tell the whole story – the highway has experienced catastrophic  storm damage at an accelerating pace in the last few years.  Of the   $23 million spent since 1987, 75% was spent  in the last 10 years.

5-year costs in thousands of dollars.

The chart  shows Highway 12 repair costs for each five-year period since 1987. It does not include the costs of repairing the 2012 Hurricane Sandy damage; the most conservative estimate of Sandy repair costs ($8 million) would  bring  total  repair costs  since August of 2011 to more than $20 million. The costs also don’t include  long-term work needed to  keep  Highway 12 open  as the Hatteras Island shoreline continues to change. NCDOT has identified a number of erosion “hotspots” and possible breach locations  along the 12.5 mile section of highway between the Bonner Bridge landing and Rodanthe. The options under study include permanently  bridging the most threatened sections of the highway within its existing right of way. That approach could  put  bridged sections of Highway 12  hundreds of feet  offshore  within a few years as the island  itself continues to erode and migrate toward the mainland.

Replacing Bonner Bridge has been estimated to cost between $265 and $315 million (in 2006 dollars).  When you add the cost of  addressing the erosion hotspots and areas at risk of breaching  on Highway 12   south of  the  Bonner Bridge landing , the total cost of  maintaining road access from the Dare County mainland  to  Rodanthe  may be as high as $1.5 billion (also in 2006 dollars). The actual costs are unknown;  the final NCDOT/ Federal Highway Administration decision documents  for the Bonner Bridge  replacement  project  left  specific decisions about how to stabilize Highway 12 on Hatteras Island to be made in the future.

Right now, it all has the feel of decision-making avoided. Inertia will carry the state  along a path of  maintaining a highway in the sea  unless state leaders look again at the most basic questions:

1. What is the purpose of Highway 12 on Hatteras Island  — to provide safe access on and off the island or to maintain a  road from  mainland Dare County to Hatteras Island? The two are not  the same.

2. Can the state — at any reasonable cost — maintain   Highway 12 between Oregon Inlet and Rodanthe as the Hatteras Island shoreline continues to erode and migrate toward the mainland?

3. Is there another way to provide transportation access on and off the island that can more easily adapt as the Hatteras Island shoreline changes?

The NCDOT decision  to replace the Bonner Bridge in a  parallel location  and permanently maintain Highway 12 on Hatteras Island has been appealed by two wildlife organizations. That  appeal is pending in federal district court.  NCDOT’s evaluation of options for maintaining Highway 12 on Hatteras Island is ongoing.

 

 

Postcards from the Coast: Is that a septic tank on the beach?

The owner of [oceanfront] land loses title to such portions as are so worn or washed away or encroached upon by the water. Thus, the lots of the plaintiff were gradually worn away by the churning of the ocean on the shore and thereby lost. Its title was divested by  “the sledge hammering seas, the inscrutable tides of God.”  North Carolina Supreme Court (quoting Moby Dick) in Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach (1970).

A lot in Raleigh or Asheville (or most points in between)  can be expected to stay  within the lot lines on a survey, but oceanfront property  has at least one movable boundary – the Atlantic Ocean.  If beach erosion causes the mean high water line to move toward land,   the  property boundary moves   with it.    Any area  seaward of  the new   mean high water line becomes state-owned “public trust”   land.    The idea of the sovereign   — in this case the state — holding all lands under navigable waters in trust for the people  came to the American colonies   from  British law and has been adopted in some form by every coastal state.  North Carolina public trust law   recognizes   a public right to use the ocean waters and the beach strand — roughly the area between the daily low tide line and the dunes — for  swimming, navigation, fishing and recreation. As the Atlantic Ocean reshapes the North Carolina coast,   the   moving  boundary may cause  private property  to  become public trust property. There are areas of the North Carolina coast where entire rows of undeveloped lots  have disappeared into the Atlantic Ocean to become public trust lands.

Nags Head Beach Houses 2009

South Nags Head  2009 (Photo: The Virginian Pilot)

The last two sections of  Senate Bill 151 (Coastal Policy Reform Act of 2013) address the problem of damaged structures on the public beach or in public trust waters. Since flood insurance only covers damage by flooding, an oceanfront property owner has an incentive  to allow  an uninhabitable erosion-damaged  house to stay on the beach (or in the water) until it finally collapses during a storm.  In the meantime, the damaged structure  can be both an obstruction and a safety hazard. Senate Bill 151  responds to a  2012 N.C. Court of Appeals decision,  Town of Nags Head v. Cherry, Inc.,  by  giving  coastal  towns and counties  clear authority  to take legal action to remove  nuisance structures from  public trust areas.

The decision in Town of Nags Head v. Cherry, Inc. came out  of  the town’s efforts  to remove  an  oceanfront house  under a  local nuisance ordinance specifically written to deal with storm and erosion-damaged structures.  The Nags Head  ordinance requires  removal of a damaged structure  if  it creates a likelihood of injury to people or property  or if the  structure (whatever its condition)  is located in a public trust area or on public land. The house owned by Cherry, Inc.  had some structural damage, but  the more significant problem was that erosion had left the  house seaward of the high water line.  Utility connections had been cut because waves washed under the structure.  The septic tank and drain lines had been damaged and were  partially exposed on the beach, leaving the house with no sanitation system.

The Court of Appeals concluded that the Town of Nags Head did not provide enough evidence  that the house created a risk of  injury to people or property  and sent that  issue back to the  trial court for hearing. Having set aside the injury issue, the court then held that  the town could not use the nuisance ordinance to order  removal  of the house just because it obstructed the  public trust area.  The court  held  that only the State of North Carolina (through the Attorney General) can enforce public trust rights.

The most basic problem with the  Cherry, Inc.  decision is  that the court lost sight of the fact that an oceanfront  structure exists in an environment very different from a  house in Raleigh or Asheville.  The court interpreted the  Nags Head  decision to order removal rather than repair of the  house   as evidence that the town acted only because the  house obstructed  the public trust area  — and not because  the house posed an actual risk to people or property.   As the court said:   ” If the Dwelling was a nuisance because of its location in a public trust area, then the only way  to abate the nuisance would be removal of the Dwelling, while conditions such as damage to the Dwelling could likely be repaired.”

By separating the location of the  house  from the  assessment of  risk to people and property, the court overlooked the fact that a damaged structure in the surf zone of the Atlantic Ocean may not be repairable in   the usual  sense.  A house buffeted by daily tides and vulnerable to every storm is at risk of  collapse  — endangering beachgoers and leaving dangerous debris —   even if the house itself is intact. The  Cherry, Inc. house  had also lost its septic system.  Replacing a septic system  on a lot overwashed by the  tides creates  a source of contamination in an area used by the public for swimming and sunbathing. Given continuing erosion and the power of the tides, replacement of the septic system  would likely also be futile.

As a practical matter,  the Cherry, Inc. decision  would  require  the Attorney General to address nuisance conditions  on the ocean beach or in the surf zone even though a town or county already  has police power jurisdiction over the area. Senate Bill 151   would   restore local government authority to consider both condition and location in deciding  that a storm or erosion-damaged structure is  a  public nuisance that must be removed.