Tag Archives: public trust rights

The Fate of the Coal Ash Management Commission

March 19, 2016. An earlier post discussed the N.C. Supreme Court decision in McCrory v. Berger. In brief, the court ruled that laws giving the General Assembly  power to appoint a majority of the members of the Coal Ash Management Commission (CAMC) and two other state commissions violated the N.C. Constitution’s provisions on separation of powers.  (See the earlier post for more detail and a link to the court’s opinion.)   The decision means the Coal Ash Management Commission cannot take any further action until the General Assembly amends the CAMC’s  appointment statute  to be consistent with the court’s decision and new appointments are made.  The most likely solution would be to give the Governor power to appoint a majority of the members;  the law could be amended as early as April of this year when the legislature convenes again.

Multiple news outlets have now reported that the McCrory administration has taken steps to effectively disband the Coal Ash Management Commission in advance of the April legislative session.  The Charlotte Observer’s Bruce Henderson reported that the Governor’s Office informed CAMC executive director  Natalie Birdwell  that the commission is “no longer a legal entity”.  The same Charlotte Observer article reports that the move by the Governor’s Office to shut down the commission’s work will dissolve contracts with independent experts retained by the commission to provide an outside review of  the Department of Environmental Quality’s (DEQ) proposed risk classification of coal ash ponds.

A few observations about the Governor’s decision to shut down the Coal Ash Management Commission:

The Governor’s action  wasn’t required by the decision in McCrory v. Berger.  The court did not find anything unconstitutional in the creation of a Coal Ash Management Commission to oversee decisions on closure of coal ash ponds and coal ash disposal.  The court  only held the method of appointing CAMC members  to be  unconstitutional.  The N.C. Supreme Court has found commission appointments statutes unconstitutional in the past and the solution has been to amend the statute to change the appointment scheme.  In 1982, the N.C. Supreme Court  ruled in Wallace v. Bone  that the General Assembly violated the N.C. Constitution’s separation of powers provisions by designating four seats on the N.C. Environmental Management Commission (EMC) for active members of the legislature.  In response, the General Assembly amended the EMC appointments statute to replace the legislators serving on the commission with citizens appointed by the General Assembly.  Nothing in the court’s decision suggested the EMC must be dissolved and that did not happen; nothing in the decision questioned the validity of past EMC actions.  The decision in McCrory v. Berger likewise  does not hold that actions already taken by the Coal Ash Management Commission — such as hiring staff and entering into contracts  for services —  are void or voidable.

Another separation of powers case still pending in  Wake County Superior Court challenges appointments to the Mining and Energy Commission  (MEC) and specifically asks the court to void the MEC’s past rulemaking actions.   But to date, no  court has ruled that the presence of unconstitutionally appointed members invalidates a commission’s  past acts. The MEC case directly  raises the issue for the first time and could lead to a decision affecting future separation of powers cases. In the meantime, the McCrory administration has chosen to go further than the decision in McCrory v. Berger  requires to  undo the existing organizational, staff and contractual arrangements supporting the Coal Ash Management Commission.  (It isn’t clear whether the McCrory administration’s position on the CAMC  would carry over to support for the plaintiffs seeking to invalidate the Mining and Energy Commission’s past rulemaking actions on similar grounds.)

The General Assembly’s next move may depend on continued legislative interest in providing oversight for DEQ’s coal ash decision making.  In 2014, the General Assembly created the Coal Ash Management Commission to provide independent oversight for DEQ decisions related to coal ash disposal and closure of existing coal ash ponds. At the time, legislators expressed concern about relying entirely on DEQ’s judgment because of controversy surrounding early McCrory administration decisions on coal ash enforcement and a pending federal investigation of relationships between state regulators and Duke Energy. The question is whether those concerns still exist and,  if so,  how the legislature will react to the Governor’s unilateral move to disable the commission. The General Assembly can resolve the separation of powers issue and revive the CAMC by simply changing the CAMC appointment provision to  allow the Governor to make a majority of the appointments.

By forcing the Coal Ash Management Commission to start over, the Governor’s action may make it impossible for the commission to meet its first critical deadline –risk classification of coal ash ponds. The Coal Ash Management Act gave the CAMC final authority to determine the appropriate risk classification of each coal ash pond; the risk classification will determine how quickly the ash pond must be closed and whether the coal ash must be excavated and disposed of in a lined landfill. Only coal ash ponds classified as Low Risk can be closed out by dewatering and capping the ash in place.  Under the law, the CAMC must make a final decision on risk classification of a coal ash pond within 60 days after DEQ sends the commission a proposed risk classification. If the commission does not act within 60 days, DEQ’s proposed risk classification becomes the final classification by default.

Timelines in the law will  require DEQ to submit proposed classifications for all of the coal ash ponds to the  Coal Ash Management Commission by mid-May.  Some proposed classifications may be ready sooner. Even if  new appointments to the CAMC can be made under an amended appointments statute by that time, the Governor’s action means the newly appointed commission will have to reassemble a staff, re-engage consultants and revive basic  operating systems to function.  Unless the General Assembly extends the time for the CAMC to review and act on proposed risk classifications,  the DEQ proposed classifications may become final by default before the commission can act.

After the ash ponds have been classified, the next major set of CAMC decisions under the Coal Ash Management Act  involve approval of final closure plans for each coal ash pond.  The closure plans determine whether coal ash will be excavated and removed from the site or capped in place and  includes approval of technical specifications for final disposal of coal ash. The closure plan may also involve approval of a beneficial reuse project as an alternative to landfill disposal. The law directs the CAMC to make the final decision on  approving a final closure plan based on a recommendation from DEQ.  The law again gives the CAMC a limited time to act on each recommended closure plan; if the commission does not act within the time allowed, DEQ’s recommended closure plan becomes final by default.

If the General Assembly does not intervene to protect the Coal Ash Management Commission’s ability to carry out its responsibilities, the practical result could be a significant change in the way the Coal Ash Management Act works. Delaying the commission’s ability to act in time to affect DEQ’s decisions on closure of coal ash ponds will have the practical effect of ceding all  decision-making back to DEQ.  The original concept of providing  independent oversight of those decisions through the Coal Ash Management Commission will be lost.

To Drink or Not to Drink: A Change in Advice for Well Owners

March 17, 2016. In 2015,  the N.C. Division of Public Health (Department of Health and Human Services) sent letters advising the owners of  369  wells located near coal ash ponds not to drink their well water because of elevated levels of vanadium and chromium-6.  Last week, the Division of Public Health sent letters to those same well owners to withdraw the “do not drink” advisory.  Some questions and answers on the conflicting advice below.

What are vanadium and chromium-6 (Cr-6)? Both elements occur naturally in the environment and can be found in coal ash. Both may  be concentrated in the air or in groundwater as a result of industrial activities.  Inhalation of Cr-6 (or hexavalent chromium) has been associated with increased risk of lung cancer. In 2010,  the U.S. Environmental Protection Agency  began a new health study to determine whether ingestion of  Cr-6  in drinking water increases other types of cancer risk. The Erin Brokovitch story of hexavalent chromium contamination in the town of Hinkley, California raised public awareness of Cr-6 as a public health issue. In Hinkley, Pacific Gas & Electric  had used Cr-6 as an additive in cooling water for a natural gas compression station. The  Cr-6 percolated into groundwater from unlined ponds used to store the cooling water, contaminating the town’s drinking water supply. (Levels of Cr-6 in  Hinkley’s groundwater were exponentially higher than concentrations found  in North Carolina  wells.)

Are there drinking water standards for vanadium and  Cr-6? There is no federal drinking water standard for vanadium.   The U.S. Environmental Protection Agency has adopted a drinking water standard for total chromium of 100 parts per billion (ppb);  the standard covers combined concentrations of chromium-3 (a nutritional element found in plant material) and chromium-6.  Water systems required to meet federal Safe Drinking Water Act standards monitor  total chromium levels, but not necessarily  Cr-6. Nationally, only the State of California  has adopted a specific drinking water standard for Cr-6. In 2014, after  years of  study prompted by the Hinkley contamination,  California adopted a standard of 10 parts per billion for Cr-6 in drinking water — 1/10th the concentration allowed under the federal drinking water standard for total chromium.

How are  N.C. groundwater standards different from  federal drinking water standards?  In part,  the two sets of standards serve different purposes. Drinking water standards adopted by U.S. EPA under the Safe Drinking Water Act only apply to the treated water that public water systems  provide to their customers.  Under the law, “public water system” means any system providing water to 15 or  more connections or to 25 or more people whether the system is  operated by a local government or a for-profit water utility.  Federal drinking water standards do not apply to privately owned water supply wells serving individual homes or businesses.

N.C.’s  groundwater standards are used to identify unsafe levels of groundwater contamination;  set goals for groundwater remediation; and advise well owners on use of water from affected wells.  Most N.C. groundwater standards track the federal drinking water standard for the same contaminant, but in a few cases the state has adopted a more stringent groundwater standard or has adopted a groundwater standard for a contaminant that has no corresponding drinking water standard.  Leading up to the well testing around coal ash ponds, N.C. had no groundwater standard for vanadium and no specific standard for Cr-6. although the state had a groundwater standard of 10 ppb for total chromium (more stringent that the 100 ppb drinking water standard for total chromium.)

How does N.C. set groundwater standards?  The N.C. Environmental Management Commission has adopted state groundwater standards as rules. Since existing groundwater standards may not address every potential contaminant,  the rules also create a process for developing  a temporary  standard  — an Interim Maximum Allowable Concentration or “IMAC” —  to address an unregulated contaminant.  Epidemiologists in the N.C. Division of Public Health generally develop a recommended IMAC based on review of human health effects such as toxicity and increased cancer risk.

Why did the  Division of Public Health send “do not drink” letters in 2015 based on  vanadium and chromium-6?   Since no state groundwater standard or federal drinking water standards existed for vanadium and  Cr-6, DEQ  asked the Division of Public Health to develop interim groundwater standards (the IMACs described above)  to be used in assessing wells around the coal ash ponds. Division of Public Health calculated a standard of 0.07 ppb for Cr-6 and 0.3 ppb for vanadium.  In each case, the deciding factor was the concentration associated with an  incremental increase in cancer risk. The table below shows the IMAC standard compared to the federal Safe Drinking Water Act standard and the N.C. groundwater standard.

Contaminant Fed. Drinking Water Standard N.C. Groundwater Standard IMAC
Vandadium No standard No standard 0.3 ppb
C.hromium-6 None –Total Cr 100 ppb None – Total Cr 10 ppb 0.07 ppb

Why did Division of Public Health withdraw the “do not drink” letters?  None of the  well owners who received “do not drink” letters  based solely on the vanadium and Cr-6 IMAC standards have well water that would violate Safe Drinking Water Act standards for a public water system.  DEQ has reported that 70% of public water systems in the U.S. exceed the IMAC standards set by Division of Public Health, including several large public water systems in North Carolina. (The information, provided in a report to the legislature’s Environmental Review Commission,  did not indicate how many of those systems exceeded the IMAC standard for vanadium versus Cr-6. You can find the entire DEQ presentation to the Commission  here.)

The gap between the IMAC standards and Safe Drinking Water Act standards meant that well  owners were being advised not to drink water that meets current drinking water standards and could lawfully be provided to customers of a  public water system.   As a practical matter, that also  means the well owners may not have access to an alternative water supply of any better quality  since  the nearest public water system also may not meet the IMAC standards.

None of this  means the analysis done by the Division of Public Health in developing the IMACs was wrong. Environmental and public health standards change with additional knowledge; the fact that the U.S. Environmental Protection has undertaken a new health study of Cr-6 in particular suggests some question about the adequacy of the  federal drinking water standard based solely on total chromium.  The standards adopted by EPA and the states also sometimes involve compromise between the most protective health-based standard and the practicalities (and cost) of meeting that standard.

The Direction of the State’s Water Quality Program

September 19, 2013.  Earlier posts talked about two unusual recent  decisions by the Department of Environment and Natural Resources (DENR) on Section 401 water quality certifications  under the Clean Water Act — one concerning  Cleveland County’s proposal to build a new dam on the First Broad River to create a reservoir and the other for federal relicensing of Alcoa’s existing hydroelectric power dams on the Yadkin River.  You can find the Cleveland County  post here and the Alcoa post here.  The question is what those two decisions  say about the current direction of the water quality program.

The  decision to waive the water quality certification for the proposed Cleveland County reservoir — the first deliberate waiver in the history of the N.C. water quality program — cited  a state rule requiring  a decision on a 401 application within 60 days. But  the Cleveland County application was not complete and DENR made no effort to go through the review process (which would have  required an environmental impact statement and a public notice).  As reported in the Charlotte Observer, Division of Water Resources Director Tom Reeder gave a different explanation of the waiver: “The state of North Carolina looked at all of this and said there’s really no value added to us getting involved in this whole thing. Cleveland County would have had to spend more money that would not go to any good purpose.”  The implication was that a state water quality review would add more time and cost when the U.S. Army Corps of Engineers (as the federal permitting agency) opposed the project — even though the state water quality review and the federal permit review usually go hand in hand and rely on the same environmental studies.

Where the Cleveland County project  proposed construction of a new dam;  Alcoa applied for a state water quality certification to cover continued operation of four existing dams on the Yadkin River that were built between 50 and 100 years ago to generate power for the now-closed Alcoa aluminum smelting plant. After nearly a year of review and a public hearing, DENR suddenly denied the Alcoa 401 Certification. The denial letter cited a state rule requiring the  applicant to have title to the project site, the permission of the property owner or the  ability to acquire the property by condemnation.  DENR relied on a lawsuit (filed the same day) claiming state public trust ownership of  the bed of the Yadkin River under the Alcoa dams to conclude that Alcoa  could not show title to the land  under the dams. According to the letter, the lack of either title or permission from the state would make it difficult to assure that Alcoa could meet water quality conditions on operation of the dams.

The earlier posts talked about a number of questions raised by the two decisions. There are also a few things to take away:

DENR has waived a 401 Certification without clearly explaining the reason for the waiver or how waiver decisions will be made in the future.   The decision letter suggests the waiver resulted from DENR’s inability to make a decision within 60 days, but the record shows no attempt to get the additional information needed to make the application complete, provide a public notice of the application or do a complete review.  The  Division of Water Resources director later suggested that  state review would have served no purpose given the Corps of Engineers’ objections to the project. Either reason could also easily apply to other 401 applications.

As to the first explanation,  DENR denied the Alcoa 401 application one month later  after nearly a year of review  with no suggestion that water quality rules required a waiver.  The second reason offered for the waiver (U.S. Army Corps of Engineers opposition) also applies to other projects. The Corps of Engineers often presses federal permit  applicants to look at other alternatives with fewer environmental impacts.   The Corps expressed similar skepticism about the City of Raleigh’s  proposal to build a reservoir on the Little River, but in that case DENR has continued to work with  Raleigh and the Corps of Engineers to look at alternatives and  address the Corps’ concerns.  The same has been true for other large commercial development projects.

DENR treated the Cleveland County reservoir project differently, but has not provided a consistent explanation of the decision or criteria for future 401 Certification waivers.

Denial of  a 401 Certification based on an unresolved claim of public trust ownership of the river bed under the project has implications well beyond Alcoa.   If there is a case to be made for public trust ownership of the upper reaches of the Yadkin River,  the same will be true for  many of the state’s inland rivers. The decision may have implications for  dam  sites proposed by Cleveland County and the City of Raleigh (on the First Broad River and the Little River respectively).

Title to the bed of the Yadkin River under the Alcoa dams  has not yet been determined by the courts, but DENR issues both Individual and general 401 Certifications for a wide range of projects  known to be on state-owned  public trust lands — including mining activities, utility and energy infrastructure, marinas, aquaculture operations, shoreline stabilization projects, water intakes, and dams.  The justification for denial of the Alcoa 401 Certification — that lack of ownership or permission from the state to apply  calls into question the applicant’s ability to comply with water quality conditions — would apply equally to those projects.

DENR has not explained what evidence of title will be required of applicants proposing to construct a project in navigable waters.    A deed to submerged lands may or may not be valid. See the earlier post on public trust doctrine for more explanation of public trust ownership and the way title to state-owned public trust lands can be transferred.   But the existence — or absence — of a state lawsuit claiming title under the public trust doctrine cannot be the deciding factor either.  Public trust ownership does not arise because of a state lawsuit; it is not negated by the absence of one.  Having made public trust ownership a factor in the issuance of 401 Certifications, DENR needs a clear and consistent approach to resolving questions of title to lands under coastal waters and navigable rivers; otherwise the outcomes will be arbitrary and subject to political influence.

The Alcoa denial letter suggests that Alcoa needs specific state permission to apply for a 401 Certification to continue operating the Yadkin hydropower dams, but does not indicate what form that permission must take. Some  activities on state-owned public trust lands have individual submerged lands leases from the State Property Office, but many do not. The state has often relied on environmental permits as the permission to develop on state-owned submerged lands.  It isn’t even clear whether a previous  lease to construct on state-owned public trust lands would be sufficient, since the state’s lawsuit claiming ownership of the Yadkin river admits that Alcoa had permission to build the four dams.

The precedent set by the Alcoa denial could apply to a number of  ongoing commercial activities in coastal waters and state rivers.  One of the (several) interesting things about the Alcoa decision is that it dealt with renewal of an operating license for dams built decades ago with state permission. The DENR denial letter suggests that the state must give express permission for the renewal of licenses and permits for ongoing operations on state-owned public trust lands — activities that could include aquaculture, marina operations, sand mining and other commercial activities. The criteria for granting or denying permission will be another question.

The troubling thing about the Cleveland County and Alcoa decisions is the reliance on rule interpretations that not only break with past practice, but are inconsistent with each other.  With respect to the waiver of a 401 Certification under the 60-day rule, DENR needs to reconcile the Cleveland County and Alcoa decisions. If opposition by the Corps of Engineers was the real reason for the Cleveland County waiver, DENR should explain the criteria for waiver in situation where the Corps has pressed an applicant for alternatives. DENR also needs to  provide  guidance to applicants proposing projects in coastal waters and inland rivers.  Otherwise,  applicants will have little assurance of a clear, consistent and predictable water quality review.

More on the Public Trust Doctrine

Several people responded to the  post about  denial of Alcoa’s 401 Certification  with questions or comments about public trust law and ownership of the bed of the Yadkin River.  Based on the comments, some additional explanation  of public trust law (and clarification of the earlier post)  may be helpful. Note: I did not intend to address the merits of the State’s claim to the bed of the Yadkin River under the Alcoa dams in the earlier post  and will not do that here — I don’t have all of the facts available to Alcoa and the state’s lawyers.

Both state and federal court decisions have recognized state ownership of lands under waters that are navigable for trade and commerce. The American colonies inherited English common law recognizing  the King’s ownership of lands under waters subject to the ebb and flow of the tides. After independence,  state courts quickly recognized that using the tides to identify navigable waters did not work well  in American where large, navigable rivers extended far inland. In Wilson v. Forbes, 13 N.C. 30  (1828),  North Carolina became one of the first states to recognize  public trust ownership of  lands under all commercially navigable rivers.  The case marked the beginning of North Carolina’s use of the “sea vessel” test for state public trust ownership.

By the late 19th century, the U.S. Supreme Court  joined  state courts  in recognizing public trust ownership of lands under  rivers that were not tidal but were “navigable in fact”.  The U.S. Supreme Court has said that waters are navigable in fact if they are  “used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” (From an 1871 U.S.  Supreme Court decision in The Daniel Ball.)   Under both state  and federal court decisions,  lands under other rivers and streams can be privately owned but  there may be a public right of navigation.

A 2012 U.S. Supreme Court (PPL Montana, LLC v. Montana)  highlighted two limitations on finding  state ownership of a river bed under the “navigable in fact” test:

1. For the state to own the bed of a river, the river had to be navigable for commerce at the time of statehood.  Later improvements that make a river segment navigable do not  give   the state title to the river bed. (So admiralty jurisdiction may be broader than state public trust ownership.)

2. The navigability test  must be applied to each discrete  segment  of the river.  The state does not have public trust ownership of the river bed  in  river segments that were not navigable for commerce at the time of statehood  — even if most of the river would be considered “navigable in fact”.  So the need to portage for a significant distance around a natural feature, such as a fall,   may cause a segment of river to fail the test for state ownership of the river bed.

You can find the full U.S. Supreme Court decision in the Montana case  here. The case resulted from the State of Montana’s   claim of ownership to the bed of several rivers where a company, PPL Montana,  had operated hydroelectric power generation facilities for decades. The Montana Supreme Court ruled in the state’s favor, but the U.S. Supreme Court reversed the state court decision.  The U.S. Supreme Court directed the Montana court to reconsider the case  based on the two limitations mentioned above – for  purposes of state ownership, the river had to be navigable for commercial purposes  when Montana became a state  and  navigability  must  be determined for each discrete  stretch of river.

A few other points about public trust law:

For the most part,  public trust law has been developed by the states.  A number of the original 13 states extended public trust ownership to non-tidal commercially navigable rivers well before the U.S. Supreme Court addressed the issue.  Since then, the role of the U.S. Supreme Court has largely been to define the property interest in navigable waters that states joining the Union  after independence acquired at statehood.  Once public trust  ownership of  a river bed has been established under the “navigable in fact” standard,  state law takes over. The individual states  identify the uses allowed and protected on public trust lands. State law also governs the sale of  public trust lands.

Federal regulatory definitions of “navigable waters” do not determine state public trust ownership. The term  “navigable waters”   has also been used to describe federal regulatory jurisdiction under the Clean Water Act and  the Rivers and Harbors Act of 1899, but the regulatory definition of “navigable waters”  does not determine state ownership of the river bed. Many water bodies considered navigable waters under the Clean Water Act  do not meet the “navigable in fact”  test for public trust ownership. Public trust decisions  recognize two categories of navigable waters — 1.  those that were navigable for purposes of commerce at the time of independence (or statehood);  and 2. those that  were not.  Waters that were not commercially navigable at statehood, may be  commercially navigable now  because of later improvements. Or those waters may be navigable for more limited purposes (i.e., floatable by a canoe, but not by  larger vessels or navigable for only short distances because of obstructions).

The states own the beds of rivers that fall into the first category. The beds of rivers (or river segments) that fall into the second category can be privately owned. But Clean Water Act regulatory jurisdiction applies  to navigable waters in both categories and there may be waters in both categories that also fall  under admiralty jurisdiction. The simple rule to remember — public trust doctrine only gave the state ownership of lands under water bodies that were navigable for commerce in their natural condition at statehood.  (Simple to state, but open to some interpretation — and then there is the problem of applying the simple rule to the specific history and condition of each river.)

Having a deed to land under coastal waters or under a river does not necessarily  establish private ownership.  If  N.C. acquired  public trust ownership at independence (and that will be a question to be decided based on the “navigable in fact” test), only a colonial grant or  express authorization by the General Assembly   could   transfer title of those lands to a private property owner.

More than you ever wanted to know about the public trust doctrine…

The Uses of a Water Quality Certification: Alcoa

September 9, 2013.   On August 2, 2013, DENR’s Division of Water Resources denied a Section 401 water quality certification for the relicensing of Alcoa’s four hydroelectric dams on the Yadkin River.   (See an  earlier post  for background on  401 Certifications.) The denial letter did not cite any water quality basis for denying the 401 Certification. Instead, the letter  referred to a lawsuit filed the same day by the N.C. Department of Administration  that: 1.  claimed title to the bed of the Yadkin River under the Alcoa dams as public trust land;  and 2. asked the court to   recognized State ownership of the Alcoa dams  based on public trust ownership of the riverbed under the dams.  The significance of the Alcoa 401 Certification denial is that  many projects requiring 401 Certifications are located  in waters that may be covered by the public trust doctrine. The Alcoa  denial raises  some interesting questions about   issuance of  401 Certifications for  activities in rivers and streams in particular.   First, some history on Alcoa’s dams and  the public trust doctrine.

History.  Alcoa operates four dams on the Yadkin River to generate electricity.  Alcoa bought an  unfinished aluminum smelting plant in the town of Badin from a French company in 1915, completed the plant and began operation in 1917 powered by the newly constructed Narrows Dam on the Yadkin River.  As power demand increased, Alcoa  built three more hydroelectric dams on the Yadkin  —  at the Falls (1919),  High Rock (1927)  and Tuckertown (1962).   After Congress strengthened the federal role in permitting hydroelectric power projects,  Alcoa received  a 50-year federal  license to operate the dams (together  known as the “Yadkin Project”) in 1958.  In 2002, Alcoa  began the process of renewing the federal license.

For two years, a group  of North Carolina local governments, state agencies (including DENR), federal  agencies, lakefront homeowners associations, and environmental organizations met  to develop recommended license conditions for the Yadkin Project.  The   group  reached agreement on measures to protect water quality and habitat; provide public access; maintain lake levels and adequate  downstream flows; and create a drought management system for the area affected by the Yadkin Project.  The group submitted the proposed conditions to the Federal Energy Regulatory Commission (FERC) in 2007.  You can find a description of the 2007  relicensing settlement agreement  here.

Shortly after the settlement agreement had been signed,  Alcoa stopped all production at the Badin aluminum works and eliminated the last 30 jobs at the plant.  At its height, the Badin aluminum works employed about 1,000 people, but production had declined over a ten-year period.  As the demand for power at the Badin works lessened, Alcoa  started selling electricity from the Yadkin Project on the wholesale market.  Complete shutdown of the Badin plant set off a backlash. Stanly County, which  did  not sign the relicensing settlement agreement, demanded that Alcoa compensate the county for jobs lost  in the  shut down of the  Badin works and raised concerns about industrial contamination in the area of Alcoa’s Badin plant.  Stanly County  and others opposed to  renewal of Alcoa’s  FERC license  persuaded Gov. Beverly Perdue to intervene in the FERC relicensing and  request transfer of the  Alcoa  license to the State of North Carolina. FERC’s decision on relicensing of the Yadkin Project has now been on hold for several years waiting for the state to make a decision on issuance of a  401 Certification for operation of the dams.

In 2009, DENR   issued a  401 Certification for the Yadkin Project. The certification required   Alcoa to upgrade the hydroelectric generation facilities and make operational changes to improve downstream water quality and  restore flow to streams affected by operation of the dams.  DWQ revoked that  401 Certification in late 2010 after discovering that  information submitted by  Alcoa during the application review  may have been misleading.  After resolving DWQ’s  concerns, Alcoa reapplied for a 401 Certification last  year.   DWQ was  moving toward issuing a new 401 Certification  for the Alcoa dams — there was  a public hearing on a draft 401 Certification  in  May  — when DENR suddenly reversed direction and denied the 401 Certification on August 2, 2013 citing the McCrory administration lawsuit filed the same day. You can find documents related to Alcoa’s recent 401 application (including the denial letter and the complaint in the McCrory administration lawsuit) here.

Public Trust Doctrine. Under ancient law brought to the American colonies from England,  lands under navigable waters are owned by the sovereign and held in trust for the public.  The “public trust doctrine” protects the right of  the public to use the  waters for navigation, fishing, and recreation.  After independence, the states acquired title to public trust lands previously held by the King. Since the state holds lands under navigable waters in trust for the use of the public,  the state rarely transfers ownership of  those lands  outright.  On the other hand, the state  allows many private activities on  state-owned public trust lands — both commercial and non-commercial. Most of the docks, piers, marinas, and fish houses in  coastal waters have been built on state-owned public trust lands.   You will  find  other commercial activities in  coastal waters, rivers and streams including  aquaculture operations,  mining,  commercial recreation facilities,  and  dams (used for various purposes).

The  McCrory administration lawsuit admits  that  Alcoa had state permission to build hydroelectric dams on the Yadkin River. In the late 18th and early 20th century,  the General Assembly allowed a number of companies to build hydroelectric dams and mill dams on state rivers by  special legislation.  It is not clear that the state claimed ownership of the bed of the Yadkin River at the time.  Some early laws authorizing construction of dams on the Yadkin  refer to construction on “non-navigable” sections of the  Yadkin River  and a number of  state court decisions  recognized private ownership  of the bed of the Yadkin River  at  specific locations.   In Rose v. Franklin, 216 N.C. 289, 4 S.E.2d 876 (N.C., 1939), the N.C. Supreme Court noted that the parties to a title dispute admitted that the Yadkin River was a non-navigable stream as it passed through the town of Elkin and found that the plaintiff owned to the center of the river.

Until the 1990s,  court decisions recognized state ownership of lands under: 1. tidal waters (like the waters of the Atlantic Ocean and the coastal bays and sounds); and 2.   other waters that were navigable by sea-going vessels. The second category covered rivers that were below the fall line and deep enough to  be navigated  by large boats.    The public trust cases  appeared to allow private ownership of  the beds of  other rivers and streams,  but recognized a public trust easement on those that could be navigated by  shallow-draft boats or used to float logs downstream.   Decisions like Rose v. Franklin  fit this understanding of the law.

A  1995 N.C. Supreme Court decision, Gwathmey v. State, 464 S.E.2d 674, 342 N.C. 287,   abandoned the use of tidal influence as a factor and stated a simple rule: the public trust doctrine applies to any water body that, in its natural condition, can be navigated by “useful vessels, including small craft used for pleasure”.   It isn’t clear whether  Gwathmey completely abandons the old distinction between waters navigable by sea-going vessels and those  floatable by canoe for purposes of state ownership of the bed. One  problem with the Gwathmey case is that it  involved tidal  waters and marsh where public trust ownership had historically been recognized. The court just substituted one grounds for public trust ownership (navigability) for another (tidal influence).  The decision never  addressed the  impact of the  new rule  on  inland rivers where state courts had  recognized  private ownership of the river bed.  The McCrory administration lawsuit claiming title to the Alcoa dams may require the court to explain how the Gwathmey decision  applies to  interior rivers and streams.

The 401 Certification Decision.  The letter denying the Alcoa 401 Certification offers only one grounds for the denial — the state’s claim of ownership of the Yadkin River bed and the Alcoa dams built there. Citing a water quality rule, 15A NCAC 02H.0502 (f),  the letter says that “signature on the [401] application ‘certifies that the applicant has title to the property, has been authorized by the owner to apply for certification or is a public entity and has the power of eminent domain’. The required ownership certification ensures that the applicant owns the project’s dams and powerhouses and is fully capable of implementing all protections of water quality that may be imposed as conditions in a 401 Certification.”

The  rule applies to  all 401 applicants, raising the question of what will  now be required of applicants proposing development in public trust waters or in rivers and streams where public trust ownership may be in question.   It  is not a standard that seems to have been applied before to projects  on rivers and streams– even in the very recent past.  Just one month earlier, DENR waived a 401 Certification for the proposed Cleveland County dam without requiring the county to  show ownership of the bed of the First Broad River or obtain state permission to apply for a federal Clean Water Act permit  to build a dam.  Beyond dam construction,   a  401 Certification may be required for other commercial activities like in-stream mining; aquaculture;  construction of recreation facilities;  and  water intake structures for industry or agriculture.  Having invoked the requirement for Alcoa’s hydroelectric dams, DENR will need to  explain how the requirement applies to other applicants and permit holders:

— Does the standard set in the Alcoa denial letter apply to all  projects  in navigable  waters that require a 401 Certification?  This is not a trick question;  the letter indicates that  ownership  or  some form of state permission  will be necessary to satisfy DENR that  the applicant  has  sufficient control over  a project  on public trust lands  to  meet water quality conditions on a 401 Certification.

— What  will an applicant have to do to show  private ownership of land under a river or stream? Deciding whether a river or stream is navigable can require a boat trip — literally.  Answering the question of public trust ownership  will be  further complicated by uncertainty about how  the Gwathmey decision  applies to  rivers (or parts of rivers)  that  had  never been considered navigable by sea-going vessels.  In the past, many of those riverbeds had been recognized as  private property subject to a public trust easement for  navigation.

— Without proof of private ownership of the river or stream bed, what  kind of  state permission will be needed?  In the 19th and early 20th century, the General Assembly  often authorized activities in rivers and streams by special legislation  — as it did for  construction of  hydroelectric dams on the Yadkin River.  The state issues leases and easements in public trust lands for some purposes, but  those   programs developed fairly late in the 20th century and have been used for the most part in coastal waters.  The easement criteria in G.S. 146-12  lend themselves more readily to piers and docks  than to more intensive uses such as mining or dam construction.

In something of a reverse of the Alcoa 401 denial,  the state has   often relied on environmental permits as the vehicle for approving  activities in public trust waters.  Under G.S. 146-12, issuance of a  Coastal Area Management Act (CAMA) permit for development in  coastal waters  also  gives  the applicant a state  easement.  (The State Property Office  has an opportunity to review those CAMA applications.)   Outside the coastal counties, it is hard to find consistent application of the easement requirement.  For projects that don’t require a CAMA permit,  there will likely be more uncertainty about  public trust ownership and a less well-trod  path to state approval if the state does own the submerged lands.

— What standards will be applied in granting or denying state permission for activities on public trust lands?  The McCrory administration lawsuit suggests an intent to tie Alcoa’s operation of the Yadkin dams to generate electricity for sale on the wholesale market to compensation for use of the public trust resources.  Outside of leases to mine on  submerged lands, state law has not generally taxed  revenue from commercial  use of public trust resources.

— What happens when Congress has given a federal agency authority  to permit an  activity in navigable waters?  Under the Federal Power Act, FERC  has the authority to license hydroelectric projects in navigable waters of the United States. The U.S. Army Corps of Engineers has authority to permit other types of structures in navigable waters under the  Rivers and Harbors Act of 1899 and  issues Clean Water Act permits to fill navigable waters.  The Section 401 Certification has generally served as the state approval for  federally permitted projects in navigable waters. I don’t know that  the state has previously required a separate easement or lease. I also don’t know whether the federal  agencies believe any other state approval is needed given  Congressional authority  to permit these activities in navigable waters.

Many questions. The answers will be interesting.

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.

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

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

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

Nags Head Beach Houses 2009

South Nags Head  2009 (Photo: The Virginian Pilot)

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

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

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

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

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

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