Tag Archives: Coastal Development

The State of the Environment Department: By the Numbers

January 12, 2017. Governor Roy Cooper inherits an environment department that looks very different than it did four years ago. The new Department of Environmental Quality (DEQ) is much smaller in size and scope than the old Department of Environment and Natural Resources (DENR).  Since 2011, legislators have moved conservation and research programs out of the department.  DEQ’s environmental protection programs  lost non-regulatory conservation and research partners like Soil and Water Conservation, Forestry, Parks and Recreation and the Museum of Natural Sciences.

The environmental programs remaining in DEQ also lost a significant number of positions.  The incoming administration will face some immediate challenges in providing timely permit reviews, inspections and compliance assistance with staffing at levels inadequate to respond to an upturn in economic activity.

About the numbers. The numbers below come from information provided by DEQ during the transition between the McCrory and Cooper administrations; reports submitted to the legislature by DENR/DEQ; and legislative budget documents.

Environmental programs experienced some position reductions in  2009-2010 due to recession-driven budget cuts; those cuts tended to focus on vacant positions. Since 2011, the nature of the position cuts have changed.  Instead of setting a budget reduction target and giving the department flexibility to meet it,  the legislature increasingly identified specific positions for elimination or focused cuts on particular programs in the department. Many of the targeted reductions affected water quality programs (including stormwater and sedimentation control) and multi-agency staffing in the department’s seven regional offices.

DEQ by the numbers:

18%   Percentage reduction in water quality and water resources staff.

41% Percentage reduction in water quality/water resources staff in DEQ regional offices. The seven regional offices house staff from multiple DEQ programs. Staff based in the regional offices do initial site visits for permit applications; provide technical assistance; and inspect permitted facilities for their respective programs.  A 2011 budget provision specifically targeted the regional offices for position cuts: 3 administrative positions; 6 positions in the Asheville Regional Office; and another 21 positions among the seven regional offices to be either eliminated or shifted from state funds to another funding source. The cuts in regional office staff came on top of program-specific position cuts, further reducing program staff and limiting the number of staff geographically accessible to the public.

45%   Percentage reduction in state sedimentation program staff since 2008; staffing levels fell from 65 in 2008-2009 to 36.9 in 2015-2016. The sedimentation program implements the state law requiring erosion control measures on active construction sites to prevent sediment from reaching rivers, lakes and streams.

12,000  The number of construction sites the state sedimentation program staff has  responsibility for monitoring.

Every 12-14 Months: Frequency of state inspection of  sedimentation sites based on current staffing levels.

2 Years. The average time required to issue  a Clean Water Act wastewater discharge permit. (The National Pollutant Discharge Elimination System or “NPDES” permits.)

42%  The percentage of industrial discharge NPDES permits that have expired and not yet been renewed with updated permit conditions.

34%  The percentage of major municipal NPDES permits that are expired and need renewal.

20% Reduction in Division of Coastal Management staff since 2010. DCM  issues permits for major development projects affecting coastal resources; supports public beach access projects;  and manages the state’s coastal reserve sites for research and education activities.

40% Reduction in core Division of Marine Fisheries staff since 2011. (The figure does not reflect the Shellfish Sanitation staff moved into DMF from the Division of Environmental Health in 2012.)

27.9 Administrative positions eliminated department-wide since 2015. (Budget, purchasing, IT, personnel, and public information staff.)

9%    Percentage of DEQ’s authorized positions that are currently vacant (161). By comparison, the much larger Department of Environment and Natural Resources had only 40 unfilled positions in the summer of 2012.

3  Programs or services entirely eliminated through budget cuts since  2009:  the Neuse River Rapid Response Team (provided response to fish kills and pollution incidents in the Neuse River); the Office of Environmental Education; and the Division of Water Quality’s well drilling team (drilled monitoring wells used to investigate groundwater quality/quantity).

Some of the consequences. Loss of staff has already lengthened some  permitting times and the department’s permitting programs are not in a good position to respond to increased development activity as the economy continues to improve. Staff reductions have also affected DEQ’s ability to provide compliance assistance and enforce environmental laws. The U.S. Environmental Protection Agency (EPA) has expressed concern about the failure of federally delegated programs in DEQ to follow the department’s enforcement policy.  EPA has also questioned the  adequacy of the state’s stormwater program.

Regulatory Reform 2015 — The Senate Bill

March 26, 2015. The Senate has introduced the first regulatory reform bill of the 2015 session – an annual rite of spring. Senate Bill 453 includes a number of environmental provisions. The most significant:

Another attempt to  create an  environmental audit privilege and immunity for violations reported as a result of an audit.  The audit and self-reporting provisions in the bill appear to be identical to those proposed by the Senate in  2014, but not included in the final  Regulatory Reform Act of 2014. See an earlier  post  about the 2014 regulatory reform bill for a description of the environmental audit/self reporting provisions making a reappearance in 2015.

Sec. 4.3 of the bill  eliminates several environmental reporting requirements.  Most of the reports to be eliminated  have become unnecessary, but the bill  also proposes to  repeal  the requirement for DENR to report  on  environmental  permit processing times.  The report on One-Stop and Express Permitting, under G.S.  143B-279.15, has  allowed legislators to track permitting times in DENR programs that issue development permits.  Given the legislature’s strong interest in environmental permitting, the report  seems an odd candidate for repeal.

Sec. 4.4   would allow more construction of sandbag seawalls and revetments on the oceanfront.  Under coastal management rules,  sandbags can only be used if the building on the property is actually threatened by erosion and the sandbags must be installed within 20 feet of the building’s foundation. The bill removes both limitations. It would allow an oceanfront property owner to build a sandbag seawall  if there is a similar sandbag structure on the adjoining lot even if the  building  on their own lot is not threatened by erosion. The bill also  allows the  sandbags to be installed further seaward of the building foundation without putting a  limit on how far seaward the sandbags can be placed.

Sec. 4.6, 4.7 and 4.8 eliminate reports on electronics recycling;  Sec. 4.9 calls for a study of the electronics recycling program.   By eliminating the reporting requirements, the state would lose information on the volume of electronics being  recycled annually. The study language suggests some legislative concern about the current electronics recycling program without identifying any specific problem.

Sec. 4.12  expands liability protection for the owners of contaminated property in a way that may shield some polluters from cleanup responsibility. The bill amends the  state Brownfields redevelopment  law  (which provides incentives  for redevelopment of  contaminated property) to make “brown fields redeveloper” in state law mean the same thing as “bona fide prospective purchaser” under a federal law regulating hazardous substances.  The Senate bill  would also repeal existing language in state law that does not allow  a person  who caused or contributed to  the contamination to receive liability protection and other benefits under the state Brownfields Act.

The  changes  could be a problem because the definition of “bona fide prospective purchaser” in the federal  law (the Comprehensive Environmental Response, Compensation  and Liability Act  or “CERCLA”)   has been defined to mean a property owner who  innocently purchased property contaminated by a “hazardous substance”.  Under  CERCLA, “hazardous substance”  refers to a specific list of chemicals associated with  acute or chronic health effects;  simple possession of  a threshold quantity of one of the listed chemicals  may trigger a federal reporting requirement.  The CERCLA “hazardous substance” list is not intended to cover all  pollutants and contaminants that may  cause harm  if released to the environment.  For example, petroleum products are excluded from the federal definition of a “hazardous substance” although  gasoline  leaked into soil and groundwater presents both a health and environmental risk.

The Senate Bill 453 change could  allow  a property  owner  who actually caused  environmental contamination to get  liability protection and other benefits under the state Brownfields law  (such as reduced property taxes) just by showing the contamination was not caused by a  hazardous substance regulated under CERCLA. That   could seriously undermine state remediation programs and give undeserved benefits to people who actually caused environmental contamination and should have an obligation to clean it up.

Note: The change may have implications for coal ash sites, although that seems to be a more complicated question. Some of the constituents of coal ash are listed “hazardous substances” under federal law. But  the U.S. Environmental Protection Agency’s  decision to regulate coal ash as a solid waste rather than a hazardous waste may take coal ash itself out of the category of “hazardous substances”.  Although it is not entirely clear, it is possible that the Senate Bill  453 change would allow a utility to take advantage of the state Brownfields  law to get  liability protection  on a coal ash site.

Regulatory Reform 2014

September 23, 2014.  Late last week, Governor Pat McCrory signed Senate Bill 734 (the Regulatory Reform Act of 2014)  on the final day to either sign or veto the bill.  The bill, now Session Law 2014-120, includes both substantive  changes to environmental laws and  amendments to the state Administrative Procedures Act  affecting environmental rule-making and administrative appeals. Below, some of the more significant  environmental provisions; a future post will look at the administrative law changes.

Air Quality: Open burning and fireplaces. Section 24 of Senate Bill  734 eliminates the need for  a state air quality  permit for open burning of leaves, stumps, logs, tree branches, yard trimmings under certain circumstances.  It  also  prohibits a city from banning or limiting open burning of debris in the city’s  1-mile extra-territorial jurisdiction unless the city provides yard waste pickup or access to drop off centers in the area to the same extent provided to residents in the city.  These provisions are the latest in a series of  legislation actions over the last three years to reduce  regulation of open burning.

Section 24(h) prohibits local air pollution control programs and the state from regulating any combustion heater, fireplace, etc. in a private dwelling except as required by federal law. This appears to be a preemptive move; I am not aware of any state or local air quality initiative  to regulate residential fireplaces and heaters.

Coastal Development:  Coastal stormwater;  inlet hazard areas; and permit appeals.

Coastal Stormwater. Section  25 of   Senate Bill  734 extends a  grandfathering provision in the coastal stormwater rule,  15A NCAC 02H .1005,   to expansion of the grandfathered development onto adjoining  property.

Inlet hazard areas. Since ocean Inlets  often move in response to changing nearshore condition and cause  accelerated  shoreline change, state coastal development rules have long put additional density and size limitations on development in  designated inlet hazard areas. In 2012, the General Assembly directed the Coastal Resources Commission (CRC) to study the Cape Fear River Inlet Hazard Area.  Within the past year,  the CRC expanded the review  to all  inlet hazard areas. Although the CRC review has not been completed,   Senate Bill 734 preemptively  removes some coastal shorelines  from existing inlet hazard area designations:

(1)  An inlet hazard area associated with an inlet that has been closed for at least 15 years.  The provision applies only to Mad Inlet in Brunswick County. The inlet originally separated Sunset Beach from Bird Island to the south, but  closed naturally in 1998.  The CRC  had already amended coastal management  rules to remove the Mad Inlet hazard designation earlier this year.

(2)  Inlet hazard area designations that no longer include the current inlet location due to shoreline change.  This provision also applies to Mad Inlet, but it is not clear that the impact will be limited to Mad Inlet. Other inlets have moved due to natural shoreline change or  engineered inlet relocation projects and  a comparison of current inlet locations to the corresponding inlet hazard area will be necessary to fully understand the potential impact of the provision.

(3)  The inlet hazard area surrounding an  inlet providing access to a State Port via a channel maintained by the United States Army Corps of Engineers. This provision eliminates the inlet hazard area designated around the mouth of the Cape Fear River at the entrance to the  Wilmington port,  which now includes part of the Bald Head Island shoreline.  The Village of Bald Head Island had pushed for removal of the inlet hazard area designation.

Shorelines  removed from  an inlet hazard area will be regulated instead under the general standards for  development on ocean and estuarine shorelines.

Coastal Area Management Act (CAMA) Permit Appeals. Section 23 of  the bill  eliminates  the automatic stay of a CAMA permit that has been appealed by a third party.  Under the amended law, a petitioner appealing the issuance of a CAMA permit will have to request an administrative law judge to stay the permit pending appeal. The amendment makes the CAMA appeal statute consistent with stay provisions in the state Administrative Procedures Act, but third parties  seeking to appeal a CAMA permit will continue to face a hurdle that is not imposed on other petitioners  —  the need for a preliminary determination by the CRC that the appeal has merit.

Environmental Permitting. Most permitting programs apply the standards in effect at the time of the permit decision. If  a rule or ordinance  changes during review of a permit application, the project may have to be  modified to meet the new standard.  In those circumstances, Section 16 of Senate Bill 734  now allows the permit applicant to choose whether to construct under the new standard or the old standard. The provision applies to development permits issued under state environmental laws or under  local ordinances. The new law does not define “development permit”, but clearly excludes zoning ordinances from the “permit choice” option.  The provision does not  recognize any exception based on requirements of federal law.

Engineered Plans. Section 29  of Senate Bill 734 makes a number of changes in the way state and local government permit reviewers interact with professional engineers  responsible for  design of a  proposed project. The  legislature’s Environmental Review Commission recommended the provision. See the section on review of engineered plans in an earlier post for more detail and  background on the conflict between PEs and state/local permit reviewers.

Onsite Wastewater Systems: Innovative systems and permitting changes

Innovative wastewater systems. Section 28 of Senate Bill  734 changes the law on approval of innovative onsite wastewater systems using polystyrene aggregate as a substitute for the gravel traditionally used in trenches for dispersion lines. “Innovative” systems do not meet established standards for onsite wastewater systems and require approval by the Department of Health and Human Services (DHHS). The new provision prevents DHHS and the Commission for Public Health from conditioning approval of a system using polystyrene synthetic aggregate on using a certain particle or bulk density.  The provision also requires DHHS and the Commission to rescind and reissue any  approval that may have included  those conditions. The legislative record does not  reflect  any  discussion of the density  conditions  — either the reason the conditions had been imposed or the effect that removal of the density  conditions may have on the performance of the wastewater systems.

Permitting. Section 40  expands the current permitting law to  cover ground absorption systems and removes the 5-year limit on a permit issued for installation of an on-site wastewater system. Under the provision, the permit holder would not require a new authorization even  if   standards for those systems have changed.

Parks. Section 31 of the bill allows the Secretary of Environment and Natural Resources to waive the 25 mile per hour speed limit in state parks for special events and  gives  the Commissioner of Agriculture the same authority in state forests. Media reports during the legislative session indicated the waiver had been requested by groups interested in using  a state park for private race events.  See a  report by the Raleigh News and Observer.

Water Quality: Isolated wetlands and stormwater. 

Isolated Wetlands. Section 54  raises the permitting threshold  for disturbance of isolated wetlands.  (See an earlier post for an explanation of the term “isolated wetlands”.) West of Interstate 95 (the unofficial dividing line between eastern and  piedmont/western  N.C. ), the permitting threshold has been raised  from 1/10 acre to 1/3 acre. East of I-95, the permitting threshold has been raised from 1/3 acre to 1 acre.    During the legislative debate, DENR indicated that raising the permitting threshold to 1 acre east of I-95 would effectively eliminate permitting requirements for isolated wetlands in the eastern part of the state. The bill also  reduces  the mitigation ratio for  all wetland impacts from 2:1 to  1:1 and directs DENR to study the definition of isolated wetlands and whether mountain bogs  should be regulated differently  than other isolated wetlands.

StormwaterSection 45 of Senate Bill 734  reverses  a 2013 regulatory reform. The Regulatory Reform Act of 2013 (Session Law 2013-413)  changed   stormwater  standards to  treat gravel areas as “pervious” and to exclude gravel from the calculation of “built-upon” area on a development site.  Since the amount of built-upon area determines the level of stormwater control required, developers had  pushed for exclusion of gravel areas from the calculation as a way to reduce stormwater management requirements. The 2013  provision  also directed the legislature’s Environmental Review Commission (ERC)  to study state stormwater programs “including how partially impervious surfaces are treated in the calculation of built-upon area under those programs”.

The ERC study group  encountered an unexpected complication — the lack of consensus on  the definition of  “gravel” had  created uncertainty  about implementation of the 2013 provision.   Instead of moving  on to the next reform requested by developers, the ERC  focused  on defining gravel and found that gravel  may not be pervious depending on the  nature of the aggregate material and the underlying substrate.   On recommendation of the ERC,  Section 45 of Senate Bill 734 effectively repeals the 2013 provision and directs the Department of Environment and Natural Resources (DENR)  to contract with N.C. State University for a study of the pervious/impervious qualities of different types of aggregate materials.

Water Supply: Interbasin transfer.  Sec. 37 of Senate Bill  734  extends an expedited interbasin transfer  approval process (originally created for certain coastal counties) to allocation of water from  reservoirs managed by the U.S. Army Corps of Engineers.  The intent may be to speed approval of an  interbasin transfer that would allow the City of Raleigh to take drinking water from Kerr Lake.

Budget Cuts in the N.C. Coastal Management Program

January 30, 2014.  Caught between state and federal budget reductions, the state’s Division of Coastal Management (DCM) eliminated five positions effective  December 31, 2013 including the land use planning director and federal consistency coordinator.  DCM carries out the state’s Coastal Area Management Act (CAMA)  — a joint state-local program to reduce  property damage and injury from coastal hazards; protect public access to the state’s beaches and waterways;  and manage the impacts of  development on sensitive coastal resources.  With the support of Republican Governor Jame Holshouser, the N.C. General Assembly adopted CAMA in 1974 shortly after  Congress enacted the federal Coastal Zone Management Act  to encourage creation of state coastal resource protection programs.  Over the next several decades,  North Carolina became a national leader in coastal policy even as   the state’s  coastal counties experienced an explosion of development activity.

DCM was forced to eliminate these two positions and three others (the Assistant Director for Permitting and Enforcement,  an IT support position and a policy analyst)  after several years of state and federal budget reductions. Federal grant funding under the Coastal Zone Management Act had been flat for over a decade while salaries, benefits and indirect costs increased. The last federal funding cycle  reduced the state grant by 5.9%. At the same time, state appropriations  have dropped  35% since 2009 and permit receipts  fell by  approximately  30%  as the recession slowed development activity.

More on the impact of eliminating the land use planning and coastal consistency positions:

Land Use Planning Director. One  goal of the Coastal Area Management Act  was to plan coastal development with an eye toward conditions that make the coastal area uniquely hazardous and uniquely productive. To work, it had to be a joint state-local effort and CAMA made local land use planning a key part of the state’s coastal management program.  Budget  cuts in previous years  forced the elimination of a long-standing DCM grant program that provided  financial assistance to coastal cities and towns for land use planning.  Ongoing budget cuts have now made it necessary to eliminate the  CAMA land use planning director. The director supervised  DCM’s  planning efforts and worked directly with local government planners.    Supervisory responsibilities for the  planning program has  shifted to DCM’s policy director.

Federal Consistency Coordinator. The federal Coastal Zone Management Act requires federal  activities affecting  the coastal area to be consistent “to the maximum extent practicable” with the state’s approved coastal management  program.  (To be enforced through the CZMA consistency requirement, a state program must be approved  by the  Office of Coastal Resource Management in the National Oceanic and Atmospheric Administration.) The approved North Carolina coastal management program  includes development standards adopted under CAMA, but also includes local land use  policies, water quality standards, and other state laws and rules concerning coastal resources.   As a practical  matter, the federal consistency requirement  gives the state an opportunity to review and comment on proposed federal activities and federal permit decisions affecting the North Carolina coast.   In many cases, federal consistency review is the only  way  the state  can influence the federal action.

You can find a list of  the types of federal actions and permits DCM  reviews  here.    North Carolina has most often used  consistency review to request accommodation for state needs rather than to block a federal action entirely.  The state used consistency review  to press the U.S. Army Corps of Engineers to put sand from federal navigation dredging projects back on N.C. beaches rather than dumping the sand offshore.  In 1991,  the U.S. Secretary of Interior upheld a North Carolina consistency objection to a federal  permit that would have allowed  Mobil Oil  to deposit drilling waste from an exploratory well onto a commercially important fishing ground off the Atlantic coast. The CZMA consistency requirement also became one of the most important legal tools in North Carolina’s  unsuccessful effort to prevent Virginia from constructing  a pipeline to take water from Lake Gaston to  the City of Virginia Beach.

Loss of the federal consistency coordinator comes at a particularly bad time given the increased  activity around  coastal energy development.  Offshore oil and gas  development  most often occurs in federal waters that are beyond the state’s jurisdiction. (Under the Outer Continental Shelf Lands Act, state jurisdiction  only extends  3-miles from shore.)  Without  direct permitting or enforcement authority,  the  state’s only influence over offshore energy activities may be through  consistency review of federal lease and permit decisions.  Since those federal decisions can advantage or disadvantage the different Atlantic coast states, even supporters of offshore oil and gas development may need a way to advocate for North Carolina interests.  Consistency review  also gives the state an  opportunity to influence  federal leases and permits for  onshore and offshore wind energy facilities.

In both 2012 and 2013, the General Assembly  funded new positions in  DENR’s Division of Energy, Mineral and Land Resources to support work on energy development.   At the same time,  DCM budget cuts have resulted in the loss of a position critical to the state’s influence on offshore energy development activities.    As of January 1, 2014,  federal consistency review  will be divided between two DCM staff  who  review  CAMA major development permits. If activity around offshore energy development  continues to pick up,  the state will need to  reinvest in the federal consistency process to have a voice in how that development happens.

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.

The Disappearance of the Coastal Resources Commission

September 25, 2013.   Under the state’s Coastal Area Management Act (CAMA), the Coastal Resources Commission (CRC) has responsibility for developing standards needed to balance protection of highly productive  coastal resources, public trust rights, and  economic development.  But  the N.C. Coastal Federation’s Coastal Review Online  reports that  the CRC  has been effectively out of commission since the beginning of August. The question is why.

This year,  the General Assembly  changed the makeup of the  Coastal Resources Commission by  reducing the number of commissioners from 15 to 13;  revising  the categories for appointment; and  giving  legislative leadership the  power  to appoint 4 of the 13 members. (See Sec. 14.24  of Senate Bill 402.) To  make the changes  effective more quickly, the  bill  caused the terms of  all  Coastal Resources Commission members serving on January 1, 2013 to  expire on  July 31, 2013 with four exceptions. Those four seats, specifically identified in the bill, have terms expiring on June 30, 2014. The bill required  the Governor to appoint nine new CRC members by August 1, 2013 to replace the nine whose  terms would end on July 31, 2013.

The problem is that  new appointments have not been made and the CRC webpage now lists only four members  — the four whose terms extend until June 30, 2014.  Those four members alone  participated in a special called meeting of the commission  in August to make a decision  related to litigation over an earlier CRC  variance decision. The regular September  meeting of the CRC scheduled for this week has been canceled.

The reason for the sudden loss of two-thirds of the commissioners  is unclear.  Both the N.C. Constitution and state law  expressly say that state officials can and should serve  until their successor has been appointed or elected.

N.C. Constitution, Article VI, Sec. 10: “In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified.”

N.C.G.S. § 128-7: “All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.”

The term “officers” covers all elected and appointed state officials, including members of boards and commissions. The provisions exist to guarantee that essential government functions continue even as terms of office end.   N.C. judges  have applied  the provisions to find that decisions made by state officials  beyond the end of their appointed term are valid  and enforceable since  those officials legitimately continue in  office until a  successor takes over.

The CRC’s responsibilities go beyond  rule adoption. CAMA also gives the CRC power to grant variances from  coastal development  standards,  issue declaratory rulings (interpreting how  coastal development rules  apply to a particular project), and approve local land use plans in the coastal counties. Those decisions are often time sensitive and important to developers as well as local governments,  community groups and environmental organizations. Right now, the CRC cannot meet those obligations with a membership of four.   Four commissioners may not even  meet CRC quorum requirements unless the remaining nine members resigned or have been individually removed from office. (Neither seems to be the case.)  The remaining four commissioners also cannot represent the broad range of interests and expertise needed to make balanced decisions about protection of the state’s coastal resources.

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.

Night of the Living Dead: Board and Commission Reorganization

In House Bill 1011 (Government Reform and Reorganization Act). the  boards and commission reorganization bill rises and walks again.  An earlier bill, Senate Bill 10,  died  when the House refused to adopt  compromise language negotiated with the Senate. The new bill came out of the House Rules Committee last week and quickly passed on the House floor.   Changes to the environmental commissions:

Coastal Resources Commission

— Reduces  the number of CRC members from  15 to 13;  nine members would be appointed by the Governor and  four by legislative leaders

— Eliminates  one at-large seat and the seat on the CRC currently designated for a representative of a  state or national conservation organization.

— Limits the number of CRC members who receive income from real estate development or construction. Seven of thirteen seats on the CRC  would have to be  filled by individuals “who do not derive any significant portion of their income from land development, construction, real estate sales, or lobbying and do not otherwise serve as agents for development related business activities”.

— Requires that all CRC  members be N.C. residents and either  reside or  own property in the coastal area

— Makes the transition to new appointees in two steps.  The bill would end the terms of all  CRC members  on June 30, 2013  with the exception of  the four members who have existing terms ending June 30, 2014.  Those four members are now in seats designated for commercial fishing,  wildlife or sports fishing, local government  and one of the three at-large seats.

Environmental Management Commission

—  Reduces  the number of EMC members to 15; nine members would be appointed by the Governor and six by legislative leadership.

— The bill keeps most of the categories for appointment to the EMC that appear in the existing statute (although in some cases, the number of EMC members in a given category may be reduced or categories have been combined). The bill eliminates the seat currently designated for a member  with public health experience and the seat for a member with experience in local government pollution control activities.

— The terms of all current EMC members would  end  on June 30, 2013. Eight new members will initially be appointed to two year terms and the remaining seven members to four year terms (to stagger the  terms). After the first set of new appointments, all members will be appointed to serve four-year terms.

The  bill also removes conflict of interest language in the EMC appointment statute. See N.C. General Statute 143B-283(c).  Both the Clean Air Act and the Clean Water Act   have conflict of interest standards  for members of state boards and commissions with  authority to issue federal permits. Under N.C. law, the EMC  has both air quality and water quality permitting authority. Although  the commission has delegated most permit decisions to DENR,  the EMC  still makes some permit and enforcement decisions (such as approval of major variances and civil penalty remissions requests.) To have  — and keep —  delegated permitting authority, North Carolina must meet the federal conflict of interest standards.  The sentence to be repealed closely tracks federal  Clean Air Act language requiring any state commission that approves permits or enforcement orders to have a majority of members who “represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under [the delegated air quality permitting program]”. An effort to amend the bill on the House floor to reinstate the conflict of interest language failed.

Wildlife Resources Commission

— Shortens the term for Governor’s appointees to the WRC from  six years to four years. (Members appointed on the recommendation of legislative leadership will continue to serve two-year terms.)

— The terms of all current WRC members would end on June 30, 2013.

— About one-half of the  Governor’s new appointees would be appointed to two-year terms and the remainder to four-year terms (to create staggered terms). After the initial appointments, all Governor’s appointees would be appointed to four-year terms.

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.