Tag Archives: Falls Lake

2017 NC Legislative Session in Review: The Budget

July 16, 2017. A few notes on the final state budget which became law following legislative override of the Governor’s veto.

Funding for Environmental Protection Programs. The final budget continues a 7-year trend of annual reductions in environmental protection programs. (See an earlier post  describing the impact of those earlier reductions.) The most significant new cuts to programs in the Department of Environmental Quality (DEQ)  affect:

     Energy Programs. The budget takes almost $1 million from energy programs. The budget reduces pass-through funding for university-based energy centers from around $1 million to a total of $400,000 divided equally between centers at Appalachian State University and North Carolina A& T University. North Carolina State University’s Clean Energy Technology Center will receive no funding. The budget also eliminates 3 of 5 positions in DEQ’s Energy Office.

     Regional Offices/Division of Environmental Assistance and Customer Service.  DEQ’s seven   regional offices house frontline permitting, compliance and technical assistance staff for multiple environmental programs including water quality, water resources, air quality and waste management. Since 2011, the legislature has made the regional offices a particular target  for reductions in positions and funding. The 2017 budget reduces appropriations supporting DEQ’s  Division of Environmental Assistance and Customer Service by $500,000 and requires DEQ to meet the cut in part by eliminating one position in each of the seven regional offices. The Division of Environmental Assistance and Customer Service is a non-regulatory program that provides technical assistance to businesses on water conservation, energy efficiency, waste reduction and other measures to improve environmental compliance.

Conservation Funding. Most funding for conservation programs, such as the Clean Water Management Trust Fund and the Parks and Recreation Trust Fund now go through the Department of Natural and Cultural Resources budget. The Department of Agriculture and Consumer Services also manages some conservation funds through the Farmland Preservation Trust, which purchases conservation easements on agricultural lands. Conservation funding in both departments generally remained stable. The legislature increased funding for the Clean Water Management Trust Fund and the Parks and Recreation Trust Fund, earmarking a combined  $1 million of the increase for an acquisition project on Archer’s Creek (Bogue Banks). The budget also allocates an additional $2.6 million to the Wildlife Resources Commission for acquisition of gamelands and an additional $2 million to the Farmland Preservation Trust Fund.

Surprisingly, the budget did not include state funds to match a federal Department of Defense (DOD) challenge grant of $9.2 million to acquire conservation lands to provide buffers around military installations. DOD announced award of a Readiness and Environmental Protection Integration (“REPI”) grant to North Carolina earlier this year for acquisition of buffers around the Dare County Bombing Range and endangered species habitat near Camp Lejeune.  The federal award  anticipated a state contribution of an additional $10.1 to be put toward the projects.  The final state budget failed to earmark any funding for the state match. The  Clean Water Management Trust Fund and other state conservation agencies could provide some  of the state match, but in the absence of a legislative earmark the REPI projects would be competing with other applications for those grant funds.

Special provisions. As usual, the budget bill (Senate Bill 257 ) includes a number of “special provisions” that  change existing law. Those include:

     Air quality. The budget allows DEQ to use fees from automobile emissions inspections to support any part of the air quality program. Previously, inspection fee revenue could only be used to implement the automobile inspection and maintenance program. In the past, the legislature has tilted toward keeping inspection and maintenance fees as low as possible while still providing adequate reimbursement to inspection stations. The 2017 provision  divorces the fees from the needs of the vehicle inspection and maintenance program for the first time.

The budget also requires legislative approval of DEQ’s plan to use approximately $90 million the state will receive from the Environmental Protection Agency’s  national settlement of an air quality enforcement case against Volkswagen.  (The case concerned  VW’s installation of software to defeat vehicle emissions control systems.) Funds from the settlement will be divided among the states and must be spent for purposes specifically allowed under the EPA settlement agreement.  The agreement gives states a number of options and the legislature clearly wants to influence DEQ’s decision about use of the funds.

     Solid Waste. The budget shifts $1 million from a fund for assessment/cleanup of contamination caused by old, unlined  landfills to the City of Havelock to be used for “repurposing” property previously owned by a recycling company.  (See Sec. 13.3) Phoenix Recycling operated on property just beyond the city limits, but closed in 2000 as a result of environmental violations.  In 2012, the City of Havelock received a state grant to assess environmental contamination on the property. In 2015, Havelock’s city manager advised the town council that if the city acquired the property, it could be eligible for up to $550,000 in federal “Brownfield” grant funds under an EPA program to support cleanup and redevelopment of contaminated sites.  In 2016, the city acquired the property and annexed it into the city.  It isn’t clear whether the city ever applied for the federal Brownfields grant. The 2017 budget provision would instead provide state funding for redevelopment of the property. A Progressive Pulse blogpost provides a good overview of how the earmarking of these funds for the Phoenix Recycling property will reduce funds available to cleanup other, higher priority contaminated sites.

Another provision (Sec. 13.4) allows the owner of an old, unlined landfill site to exclude the property from a state program to cleanup contamination  from  “pre-1983” landfills.  (Modern standards for solid waste landfills went into effect in 1983).  Under the provision, the owner can remove property from the state cleanup program by accepting liability for any contamination and providing financial assurance to address contamination. Financial assurance would not be required if the landfill had received solid waste from a local government (which was often the case). This is a very odd provision in several ways:

♦ Under current law, DEQ has responsibility for assessment and cleanup of pre-1983 landfill sites;  revenue from a statewide solid waste disposal tax pays for the remediation. Under the new provision, a property owner would  waive state responsibility for cleanup and potentially accept environmental liability they might not otherwise have.

♦ The provision has not been restricted to sites that present a low environmental  risk; the only limitations seem to be the property owner’s willingness  to take on the liability and ability to provide financial assurance if required.

♦ The provision describes the opt-out as a “suspension” of the state cleanup program for as long as the person owns the property. That clearly means the state itself would not undertake any assessment or cleanup activity on the site, but the law does not suspend enforcement of state groundwater standards and other environmental remediation requirements. Those programs normally seek remediation by the person(s) responsible for the contamination; under the new provision, the property owner  must volunteer for the liability whether they contributed to the contamination or not.

♦  The implication of a “suspension” is that the state may again have responsibility for the site if it changes ownership in the future. Suspending environmental remediation until a change of ownership could simply delay necessary cleanup activities without regard to environmental risk.

It isn’t clear why a property owner would ever choose to do this.

The budget bill also requires a study of DEQ’s use of revenue from the solid waste disposal tax. The opt-out in Section 13.4  may be a hint of additional changes to the solid waste disposal tax and the state cleanup program for pre-1983 landfills.

     Water Quality: Nutrient Pollution.  The (now annual) budget provision concerning nutrient management strategies directs DEQ to use $1.3 million to test use of algaecides and phosphorus-locking technologies as an alternative to state rules imposing tighter wastewater limits and stormwater controls to address excess nutrients  in  Falls Lake and Jordan Lake. Those rules have been temporarily suspended by the legislature.  (For background on the nutrient rules, see a previous post;  the proposal for an automatic sunset  of the nutrient rules described in the earlier  blogpost was ultimately replaced by legislation further delaying implementation of the rules and a university-based study.)  Based on discussion in committee, legislators had a specific technology developed by a North Carolina-based company in mind.

House-Senate Compromise on Watershed Rules

June 30, 2016. The House has begun debate on a  compromise version of the 2016-2017 budget bill (House Bill 1030) that resolves differences between House and Senate budget proposals. The new budget bill includes a modified version of a Senate provision on watershed-based water quality rules. See an earlier post  for more on the original Senate provision in Sec. 14.13 of the budget bill. The significant pieces of the compromise provision:

The scope  of the budget provision has been reduced. The new version of Sec. 14.13 only applies to nutrient rules adopted for the Falls Lake and Jordan Lake watersheds.

The provision no longer sunsets existing nutrient rules. The budget provision still funds a UNC study of nutrient rules (focused on the Falls Lake and Jordan Lake rules) and directs the Environmental Management Commission to review and readopt  those nutrient management rules based on recommendations from the study.  But the bill no longer automatically sunsets existing rules.

The UNC study of nutrient management strategies.  The budget provision now funds the study for six years at $500,000 per year ($3 million for the entire study) and has separate report-back dates for the two watersheds — December 31, 2018 for  Jordan Lake and December 21, 2021 for Falls Lake. In part, the provision requires UNC to compare water quality trends  in Falls Lake and Jordan Lake to implementation of the different parts of the nutrient strategies. Since a number of the nutrient rules have not yet gone into effect because of legislative delays, evaluating the effectiveness of the rules based on water quality trends will be difficult. That is particularly true for wastewater discharge limits and stormwater controls that have never been implemented or only partially implemented in the two watersheds.

Delayed implementation of the Jordan Lake and Falls Lake rules. The provision further delays implementation of the nutrient management rules until at least 2019 for the Jordan Lake watershed and 2022 for the Falls Lake watershed.

DEQ study of in-situ technologies to address nutrient-related water quality problems. The budget provision continues to require a DEQ study of in situ technologies to reduce nutrient problems — now focused on algaecides and phosphorus-locking technologies. The DEQ study will be entirely separate from the UNC study of nutrient management strategies and  receives a separate appropriation of  $1.3 million for a trial of in situ technologies.    The final report will be due on March 1, 2018.

Exclusion of areas within the Jordan Lake watershed from stormwater requirements. The compromise  budget includes a new  subsection 14.13(f)  that says new impervious surface added in the Jordan Lake watershed between July 31, 2013  and December 2020 (after study and readopting of the rules as required under the budget provision) should not be counted as built-upon area for purposes of developing nutrient reduction targets under the Jordan Lake stormwater rules.  It isn’t entirely clear what this means.

Under  federal Clean Water Act requirements, the state has an obligation to cap discharges of any pollutant causing impaired water quality. These caps (called a Total Maximum Daily Load  or “TMDL”) must be approved by the U.S. Environmental Protection Agency. The Jordan Lake rules cap nutrient loading at a level necessary to address impaired water quality in the Jordan Lake reservoir; meeting the TMDL  requires a reduction  in nutrient loading  from the   baseline years  of 1997-2001. The rules then allocate the reductions proportionately to the different arms of Jordan Lake and to major nutrient sources in those watersheds – wastewater dischargers, stormwater runoff from developed areas, and agricultural activities.

So  the new Sec. 14.13(f) raises several issues –

  1. The new subsection  is written as though local governments in the Jordan Lake watershed develop their own stormwater nutrient reduction targets and can change the reduction target by excluding newly developed areas.  In reality, the reduction targets have been based on  allocation of the  reductions required  to meet the Jordan Lake TMDL under  EMC rules and a watershed model developed by DEQ.
  2. It  assumes that the nutrient reduction target assigned to stormwater would change based on development over this 7-year time period, but the target is based on reduction from the historic baseline of 1997-2001. The one thing that changes by delaying implementation of the Jordan Lake stormwater rules is that more areas will fall under requirements for stormwater retrofits of existing development rather than stormwater rules for new development projects.
  3. If the intent is to exclude these recently developed areas from future implementation of  Jordan Lake stormwater rules for new or existing development, DEQ may have to allocate greater reductions to other nutrient sources in order to meet the Jordan Lake TMDL approved by EPA.

A new cross-reference to Chesapeake Bay stormwater measures. Another new subsection, Sec. 14.13(i),  requires the state to allow stormwater measures approved by the Chesapeake Bay Commission for use in meeting the Chesapeake Bay  TMDL to also be used to meet the Jordan Lake  and Falls Lake TMDLs  based on the same nutrient reduction credit allowed under the Chesapeake Bay program.  The Chesapeake Bay Program (rather than the Chesapeake Bay Commission) maintains the Chesapeake Bay TMDL model and seems to be the gatekeeper for pollution reduction credits included in the model. Credits for nutrient removal under the Chesapeake Bay model  will likely turn out to be a range based on the type of stormwater measure; the area; the volume of stormwater treated; etc. It isn’t immediately clear  what — if any — stormwater measures would be authorized under this provision that are not already allowed under state rules.

The Battle Over Riparian Buffers

June 22, 2015. An earlier post  described  changes to state  buffer rules proposed in House Bill 760 (Regulatory Reform Act of 2015).  Last week, the North Carolina Senate put its own set of buffer changes into House Bill 44 (Local Government Regulatory Reform). The buffer provisions added by the Senate look very different from those approved by the House in H 760.

First, the purpose of  riparian buffer rules. In several areas of the state,  water quality rules limit clearing, grading and development activity within 50 feet of  rivers, lakes and streams. For the most part, the state buffer rules responded to water pollution problems caused by excess nutrients.   A  number of large fish kills,  including a 1995  fish kill in the Neuse River estuary that lasted more than three months and killed tens of millions of fish,  prompted  nutrient rules for the lower Neuse River and the Tar-Pamlico River basin.  The rules required stream buffers to  reduce  nutrient runoff and also put stricter limits on wastewater discharges of nitrogen and phosphorus.  More recently, similar nutrient problems led the Environmental Management Commission (EMC) to adopt  buffer rules for the  Falls Lake  and Jordan Lake watersheds.  State buffer rules also apply to the main stem of the Catawba River  and in the  Randleman Reservoir watershed to prevent development of nutrient problems. The rules  require a 50-foot vegetated buffer —  Zone 1  (the first 30 feet back from the water) has undisturbed natural vegetation;  Zone 2  can be graded and replanted.

In Section 13 of House Bill 44, the Senate proposes to  shrink the riparian buffer required under the Neuse River rules from 50 feet to 30 feet and allow more  disturbance within 30 feet of the water.  The  Senate bill then directs DENR and the Environmental Management Commission  to “implement all other rules adopted by the Commission for the protection and maintenance of existing riparian buffers for nutrient sensitive waters”  in the same way until the beginning of the 2016 legislative session. The implications:

♦ Stream  buffers on waters already stressed by excess nutrients will be significantly narrowed; it isn’t clear whether the narrower buffer will be as effective in reducing polluted runoff.

♦  The Senate provision allows grading, clearing and revegetation of the entire 30-foot buffer.

♦  Changes to the Neuse River buffer rule would be permanent, but  changes to buffer rules on other nutrient sensitive waters expire at the beginning of the next legislative session in May 2016.  (Although nothing in the bill suggests the Senate actually  intends to allow those buffer rules to return to their current form  in 2016.)

♦  Whatever happens in 2016, temporarily  reducing riparian buffer requirements on nutrient sensitive waters could set off a frenzy of buffer clearing during the one year interim.

♦ Since the provision only applies to  buffer rules adopted by the EMC  “for nutrient sensitive waters”,  buffer rules adopted for  Randleman Reservoir and  the main stem of the Catawba River  would be unchanged.

The Senate  and  House also differ on the method for measuring riparian buffers on coastal wetlands. The Senate provision (in Section 14 of House Bill 44) requires all coastal wetlands  — even those regularly flooded on the tides — to be considered  part of the riparian buffer.  The change would potentially allow clearing, grading and development activity up to the edge of a regularly flooded  coastal wetland.  H 760 requires the riparian buffer on a coastal wetland to be measured from the normal water level,  likely preventing use of regularly flooded wetlands as the buffer.

The House quickly voted not to accept the Senate changes to House Bill 44; the bill  has been sent to a conference committee to work out the differences.  The Senate has not yet taken up  H 760.  Legislative conferees can sometimes color outside the lines, but as things now stand the choice seems to be between:  1. Maintaining existing 50-foot riparian buffer requirements, but exempting a large number of  properties from the rules entirely (the House proposal in H 760);  or 2. Reducing the riparian buffer from 50 feet to 30 feet on nutrient sensitive waters and allowing grading, clearing and revegetation in the entire buffer  (the Senate proposal in H 44).

Note on Goose Creek: Buffer rules for the Goose Creek watershed protect habitat for a federally listed endangered species. The rules, which were negotiated with the U.S. Fish and Wildlife Service,  require broader buffers than those on nutrient sensitive waters. The Senate buffer provisions in H 44 do not affect the Goose Creek rules.  The buffer exemption in H 760 could apply in the  Goose Creek watershed, which may undo the negotiated agreement with U.S. Fish and Wildlife.

Reforming Riparian Buffers Out of Existence

May 7, 2015.  Yesterday, the N.C. House approved House Bill 760 (Regulatory Reform Act of 2015) after adopting several amendments. House Bill 760 has  attracted a lot of media attention because of  the renewable energy provisions.  Less attention has been paid to part of the bill that will significantly weaken use of riparian buffers to reduce water pollution.

An earlier post  described the original riparian buffer provisions in House Bill 760. By amendment,  the House changed the provision on measurement of riparian buffers adjacent to coastal wetlands.  The new language requires the buffer to be measured from the normal water level, recognizing that some coastal wetlands regularly flood on the tides. The bill continues to have confusing language on  local government authority  to adopt riparian buffer ordinances outside of the river basins and watersheds covered by state buffer rules. Amendments  improved those provisions a bit,  but I am not sure even the amended bill  allows for all of the circumstances in which a local government may need to adopt a buffer ordinance to meet state and federal environmental standards.

But in what may be the most under-discussed section  of House Bill 760, the bill  still creates an exceptionally broad exemption from riparian buffer rules that apply in the state’s nutrient impaired river basins and watersheds. None of the amendments  to House Bill 760 narrowed the scope of the  buffer exemption.  In  areas covered by state nutrient sensitive waters (NSW)  buffer rules, the bill exempts all tracts of land platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.) The only condition on the exemption:

Other than the applicable buffer rule, the use of the tract complies with either of the following:

a. The rules and other laws regulating and applicable to that tract on the effective date for the applicable buffer rule set out in subsection (a) of this section.

b.The current rules, if the application of those rules to the tract was initiated after the effective date for the applicable buffer rule by the unit of local government with jurisdiction over the tract and not at the request of the property owner.

The conditions  don’t narrow the exemption  much — if at all.  Enforcing (a)  requires someone in the present to  determine whether use of the property complies with laws and rules in effect as much as 15 years ago.  And (b) appears to be the “Get Out of Jail Free” card that allows a property owner to claim the exemption based on meeting all current local ordinances other than the buffer rule. Unless  I am missing something, the property owner can just opt out of the riparian buffer requirement as long as a development project meets other current standards.

The exemption applies whether the riparian buffer rules are enforced by the state or by a local government with  delegated authority to enforce the  buffer requirements.  The exemption also seems to apply to both undeveloped properties and to properties already developed and currently in compliance with the buffer requirements.  If so, owners of developed properties would be free to clear vegetation and create new encroachments in the buffer. (Failure of the bill to distinguish between developed and undeveloped properties in applying the exemption criteria may have led to some unintended consequences —  although the exemption language is so aggressively broad,  I am not sure that is the case.)

The buffer  rules are  part of  broader  water quality restoration plans designed to meet  federal Clean Water Act requirements. The Clean Water Act requires the state  to adopt a Total Maximum Daily Load (TMDL) —  a cap —  for any pollutant causing impaired water quality. A number of state  water bodies, including the Neuse River estuary, Falls Lake and Jordan Reservoir,   have had impaired water quality due to excess nitrogen and phosphorus.   For those river basins and watersheds, the nutrient management rules provide the underpinning  for  TMDLs that set nitrogen and phosphorus reduction targets.

North Carolina ‘s longstanding  policy has been to share the burden of pollution reduction among all of the major nutrient sources so the rules include tighter controls on wastewater dischargers; measures to reduce the amount of nitrogen and phosphorus leaving agricultural lands; and stormwater controls and riparian buffer requirements to reduce nutrient runoff from developed areas.  Each set of nutrient management rules reflects a long negotiation  involving  all of the  interests  affected — local governments, agriculture, landowners, real estate developers, environmental organizations — to balance the pollution reduction burden.

The House Bill 760 buffer exemption has the potential to upset the balance of the nutrient management plans and jeopardize the state’s ability to meet nutrient reduction targets in the TMDLs.  Understanding the impact of the exemption will require the answers to a number of questions yet to be asked or answered in the legislative debate:

1.  How many properties in each nutrient sensitive  river basin or watershed potentially qualify for the exemption and what percentage of riparian area  could be affected?

2.  How much nutrient reduction has the Division of Water Resources credited to protection of the riparian buffers in the approved TMDLs?

3.   Would the exemption affect the state’s ability to meet nutrient reduction goals for these impaired water bodies?

4.  Would the state have to ask for more nutrient reductions from other sources (such as wastewater treatment plants and agricultural operations) to make up the difference?

The bill now goes to the Senate, which has more often been the starting point for legislation to  limit use of stormwater controls and riparian buffers to restore water quality in impaired waters.

Regulatory Reform and the Environment II: Targeting Environmental Rules

November 21, 2013.   In North Carolina,  “regulatory reform” has had a strong focus on environmental rules for  nearly twenty years. An earlier post sketched a very broad history of regulatory reform in N.C. starting with the creation of the Rules Review Commission in 1986. But from 1977 into the early 1980s,  the General Assembly  actually had an Administrative Rules Review Committee made up of legislators. The committee tracked the number of rules adopted by state agencies and reviewed rules for statutory authority. I was able to find committee reports from 1979-1983. (After that, the online  trail went cold.)  The reports list all of the rules the committee objected to for lack of statutory authority and how those objections were resolved. Environmental rules didn’t  receive  much   attention from the committee; some of the most common objections concerned rules assessing fees not authorized by law; state agencies creating criminal penalties by rule;  and professional licensing  boards overstepping their authority.

Environmental rules may have had a lower profile simply because of  the times. Congress  had just adopted the major federal environmental protection laws  in the early to mid-1970s —  the Clean Air Act  in 1970, the Clean Water Act  in 1972, the  Safe Drinking Water Act in 1974 and the Resource Conservation and Recovery Act (regulating hazardous waste)  in 1976.  In the 1970s and early 1980s,  state environmental agencies were  adopting rules  needed to run delegated permitting programs under those federal laws: water quality  and air quality standards; drinking water regulations;  hazardous waste permitting rules;  and regulations for petroleum underground storage tanks. Environmental rulemaking may not have been without controversy, but  there was also significant support for environmental programs and for the most part  the General Assembly seemed to let the  regulatory agencies  handle the controversies.

That started to change as water quality rules in particular began to have a greater impact on development activity. The first generation of  environmental permitting rules largely affected local government and  industry.  In the water quality program, local government wastewater treatment plants  and industries directly discharging wastewater to a stream  needed a Clean Water Act permit.    A developer only needed an environmental permit if the project involved filling wetlands or a segment of stream.  As  the state  began to grapple with the impact of development activity on  coastal resources and water quality in the late 1980s, environmental  permitting came to have a much greater effect on developers and private property owners.

By 1984, the state’s Coastal Resources Commission had adopted the first standards for development on the state’s ocean and inlet beaches. Those rules included oceanfront setbacks and restrictions on use of seawalls and jetties to protect oceanfront structures from erosion.  In the late 1980s, the state’s water quality program  began  work on  rules to address high bacteria levels in coastal shellfish waters.  Those  rules included the first state stormwater management requirements for new development projects.  Since then, a  series of water quality initiatives have used stormwater  standards, density limits and  riparian buffers to reduce the impact of polluted runoff from developed areas. A combination of density limits, buffers and stormwater controls became part of the basic water supply watershed program designed to prevent pollution of drinking water supplies. Those same tools became part of the comprehensive water quality strategies to reduce nutrient over-enrichment in the Tar-Pamlico River, Neuse River,  Falls Lake and Jordan Lake.  In the nutrient  strategies,  development standards represented one part of a much larger set of pollution reduction measures  that also  included  tighter controls on wastewater discharges and  best management practices to limit agricultural runoff.

Legislative  Disapproval of  Environmental Rules.  Legislative action on regulatory issues can  take other forms, but tracking disapproval bills gives a fair indication of where legislative attention has been  focused. For the first few years after the General Assembly amended the Administrative Procedure Act to allow for legislative disapproval of rules, virtually all of the disapproval bills concerned environmental rules.  The first disapproval bills introduced in the General Assembly (in 1998) targeted the Neuse River stream buffer rules and the Tar-Pamlico nutrient  rules (which also included buffer and stormwater requirements).   Based on a  search of the General Assembly bill database, legislators introduced bills to disapprove at least 41 state agency rules between 1998 and 2012.   Sixteen of the disapproval  bills  targeted environmental protection rules;  in some cases, a single bill  covered multiple rules. Another four bills proposed to disapprove Wildlife Resource Commission regulations. All of the other regulatory programs in state government (public health, worker safety, building code, occupational licensing boards, food safety, insurance regulation, etc.)  accounted for just another 16 disapproval bills during the same period. (See Legislative Disapproval Bills for a complete  list of the disapproval bills that I  found.)

Of the 16  bills to disapprove environmental  rules, ten concerned water quality rules.  The list  includes the Neuse River  buffer rules, the Tar-Pamlico River nutrient rules, coastal stormwater rules, rules classifying streams as trout waters or Outstanding Resource Waters,  water quality standards for municipal storm sewer systems,  and the Falls Lake and Jordan Lake nutrient management strategies. That list of water quality rules includes  the most debated (and negotiated) environmental rules adopted in the last 15 years, addressing some of the state’s most complicated water quality  problems. One common thread  is that all of those regulations  use development standards as one tool to address a water quality problem. The other common (and related) factor is that all encountered opposition from realtors,  developers, and owners of waterfront property.

Amending the APA to make environmental rulemaking more difficult. There has also been an effort to make environmental rulemaking more difficult by putting limits or requirements on environmental rules that don’t apply to other kinds of regulations. In 2005, the General Assembly  amended G.S. 150B-21.4 ( fiscal notes on rules) to require a special fiscal analysis of environmental rules — and only environmental rules — affecting state highway projects. The change responded in part to expansion of   stormwater  requirements,  which affected state highway projects as well as conventional building projects.

In 2009, several House and Senate bills proposed to put a moratorium on  rulemaking by the state’s Environmental Management Commission (the citizen commission  that adopts air quality and water quality rules).  House Bill 1335 actually passed the House and received a favorable report from a Senate committee before being pulled off the Senate floor without a vote.  But the 2011 Regulatory Reform Act, Session Law 2011-398, picked up the effort to restrain environmental rulemaking  and put new  limits on environmental rules that do not apply to other state rules.   G.S. 150B-19.3 prevents a state environmental agency from adopting a rule that is more stringent than a corresponding  federal environmental rule except in very limited circumstances.  As a practical matter,  the new law  will  be much more difficult to apply than legislators may have expected. Many federal environmental rules  provide  a framework for regulation rather than comprehensive standards and permitting procedures, making the “more stringent than” comparison difficult to impossible — although it should provide fertile ground for argument.  More about the policy implications of handcuffing state environmental regulations to federal rules in  a future  post.

The focus on environmental regulations continued in the  2013 Regulatory Reform Act, Session Law 2013-413.  The  most recent  legislation requires review of existing rules every ten years causes rules to automatically expire if the review does not occur. Although the review requirement  applies  to all state regulatory programs, the legislation specifically directs the  Rules Review Commission to schedule existing state water quality and wetland rules for the first round of review in 2014. The legislation also puts a one-year moratorium  on adoption of local government ordinances that address environmental issues  covered  by state and federal environmental rules. During that year,  the legislature’s Environmental Review Commission will study local government authority to adopt environmental ordinances. Like the 2011 limitation on state environmental rules, the moratorium on local ordinances almost certainly has some unintended consequences. More about that in a future  post as well.

Why has regulatory reform come to focus so heavily on water quality rules?   In one way, water quality rules seem  to be an odd focus for so much regulatory reform activity since federal requirements drive so many of the rules.  But while  federal law requires the state to  reduce  pollution causing impaired water quality  (like the nutrient problems in the Tar Pamlico River, Neuse River, Falls Lake and Jordan Lake), federal rules do not dictate the remedy.  The legislative disapproval bills have targeted the remedy —  a comprehensive strategy that reduces direct discharges of the pollutant (from wastewater treatment plants and industrial dischargers) and indirect runoff from agriculture and developed areas.

In these instances, things happening under the banner of “regulatory reform” are not so much about eliminating unnecessary and burdensome regulations. It is really about how the state will  solve complicated environmental problems and whether  the burden of pollution reduction will be shared by all of the sources contributing to the problem.  Since  2013  legislation also delayed further implementation of the Jordan Lake rules to  convene a  legislative study committee on Jordan Lake water quality (see Session Law 2013-395), the current General Assembly will have  a chance to  struggle with  those questions.

The Legislative Game of Jenga

Jenga: A game of skill played with a stack of wooden blocks. Each player removes a block from the stack and balances it on top, creating a taller and increasingly unstable  tower  as the game progresses. (Hat tip to the  Wikipedia  entry for a simple explanation.)  As you may have guessed, the goal  is to not be the player who causes the tower to collapse.

Since the  1990s, the state has adopted several very complex sets of  water quality rules in response to  excess nutrients  in the Neuse  River, the Tar-Pamlico River and  the Falls Lake and Jordan Lake reservoirs. Excess nutrients  in the water (such as nitrogen and phosphorus) can  cause algal blooms and — particularly in hot weather — lead to large fish kills. In a reservoir, algal blooms may also  affect drinking water quality and increase water treatment costs.

Section 5 of Senate Bill 612 (Regulatory Reform Act of 2013)   would pull one block out of the   carefully  balanced  tower of  nutrient management rules in  the Neuse River and Tar-Pamlico River basins by  effectively  eliminating  stream buffer requirements.   Stream  buffer rules  have been  part of the Neuse River nutrient management strategy from the beginning.  Every  set of state nutrient  rules since 1997  builds on the foundation of the Neuse strategy and all include stream buffers as a  critical block.  Before pulling a block out of the tower, it  is worth looking back at how the tower was built.

The history of the stream buffer rules begins with development of a nutrient management strategy for the Neuse river basin in the late 1990s.  In 1995,   the  N.C. General Assembly responded to a series of large fish kills in the Neuse River estuary and a toxic algae scare by directing the state’s  Environmental Management Commission (EMC) to adopt rules to reduce nitrogen loading in the Neuse by at least 30% (Session Law 1995-572).   To reach the reduction goal, the EMC  allocated the reduction (in pounds of nitrogen)  among  the  largest  nitrogen sources in the river basin. The allocation was done by source category (wastewater dischargers, agricultural operations and developed areas)  based on the  nitrogen contribution from each type of source.

The final Neuse rules required  large  wastewater  treatment plants  to  reduce  the amount of nitrogen being discharged to rivers and streams;  set up a nutrient trading system to allow  wastewater dischargers to generate and trade credits for additional nitrogen reductions; required farmers to develop best management practices to reduce nutrient runoff from row crop agriculture and  animal operations; and required  maintenance of  vegetated buffers along streams in the river basin.  Just as  tighter wastewater discharge standards and agricultural best management practices reduce nutrient  loading from those sources,  stream buffers  reduce nutrient loading from developed areas by allowing  trees and shrubs  to  absorb nitrogen  in runoff from developed areas. The  EMC then modified  an  earlier  nutrient management strategy  for the Tar-Pamlico River  to add stormwater and stream buffer  requirements  similar to those adopted for the Neuse. By August 1, 2000, stream buffer rules were in effect in both the Neuse and the Tar-Pamlico river basins.

Section 5 of Senate Bill 612 appears to be identical to language supported by the N.C. Homebuilders Association and the N.C. Association of Realtors in 2012.  The proposed exemption is very broad.  It  would exempt   all private property from the buffer rules as long as there was a plat  of the property on record with the Register of Deeds before August 1, 2000.  (The language does not limit the exemption to  residential lots or to lots shown on an approved subdivision plat; it appears that any type of  recorded map  could  qualify a property for the exemption.)  In 2012, concern about this same language led to  compromise legislation.  Session Law 2012-200   extended a stream buffer  exemption that already existed  in the coastal  area to all waterfront lots in the Neuse and Tar-Pamlico river basins.  The exemption (which applies to residential lots platted before August 1, 2000)  allows development activity in the stream buffer if  the lot is too small for construction of a single-family home (and  onsite wastewater system if needed) entirely outside the buffer.

The risk in pulling the buffer rules out of the nutrient management strategy entirely  is that the nitrogen and phosphorus reductions provided by the stream buffers would be lost. Since both rivers have been listed as having  impaired water quality because of excess nutrients,  the  federal  Clean Water Act requires the state to reduce nutrient loading to the rivers.  Loss of the nutrient reductions provided by stream buffers will simply shift more of the burden (and cost) of nutrient reduction to  other sources — local government wastewater treatment plants, industrial wastewater dischargers,  and agricultural operations.

Not to abuse the Jenga metaphor,  but the  General Assembly  has again been asked to  pull a block from  the center of the tower  blindfolded — that is, without being able to see the relationship of one block to the others.  The state’s nutrient management rules are not sacred and untouchable; they were not handed down on stone tablets.  But in developing nutrient management strategies for the Neuse and the Tar-Pamlico river basins,  state environmental programs  began  moving toward something like negotiated  rulemaking — trying to  find the right balance with all of the parties (public and private) at the table. Those other parties also need  a seat at the table before a decision is made to significantly change the rules.

Senate Bill 612 raises two questions. The first:  Can the state solve nutrient problems in the Neuse and Tar-Pamlico rivers without using stream buffers to reduce reduce runoff from developed areas? The second  has implications well beyond the Neuse and Tar-Pamlico rivers: How will the General Assembly  respond to political pressure to change  a rule  in a way that benefits  just one of the many businesses, industries, local governments, and nonprofit organizations who compromised to solve a complicated environmental problem?

The answer to the second question will affect  the state’s ability to   deal with other difficult environmental issues in the future. (Competition for water supply comes to mind.)