Tag Archives: Water Permitting

The Federal Budget and North Carolina’s Environment

March 24, 2017.  Last week, the Trump administration released the Trump Budget Blueprint which describes in very general terms the President’s budget proposals for federal agencies.  The Blueprint just opens the debate on the 2018 federal budget.  Congress will significantly influence the final budget and members from both parties have already expressed concern about some of Trump’s proposed budget cuts.   Percentage-wise, the deepest cuts in the Trump Budget Blueprint affect the Environmental Protection Agency.  As background for the coming federal budget debate,  this blogpost looks at the potential impact of the Trump budget plan on key state environmental protection programs.

Based on preliminary reports, the North Carolina Chapter of the Sierra Club provided a guide to the potential impact of the Trump budget the day before actual release of the Budget Blueprint. (Full disclosure — I assisted in preparation of the Sierra Club report.)  For each  major state environmental protection program, the report shows the percentage of the program budget currently funded by federal grants and the impact of cuts identified in the Trump budget plan. The report also provides information on other  DEQ activities supported by  federal grants that may be eliminated under the Trump administration’s  budget plan.

I want to focus on information in the Sierra Club report about impacts to Clean Air Act, Clean Water Act and Safe Drinking Water Act programs in North Carolina.   EPA  has delegated federal permitting and enforcement authority under those laws to the state’s Department of Environmental Quality (DEQ). EPA provides oversight to ensure the state programs meet federal requirements,  but DEQ has responsibility for day to day implementation.  DEQ issues Clean Water Act permits for wastewater discharges; Clean Air Act permits for  air emissions and air pollution control equipment; and Safe Drinking Water Act permits for public water systems.  DEQ also enforces water quality, air quality and drinking water standards.  In return for the state taking on those federal permitting and enforcement responsibilities, EPA provides program implementation or “categorical” grants to partially offset the cost.

The Trump Budget Blueprint does not provide detail on many cuts, but specifically proposes a 45% reduction in the EPA categorical grants that support basic state Clean Water Act, Clean Air Act and Safe Drinking Water Act programs. The tables below put the proposed cut in the context of each delegated program’s budget. Some notes on the numbers:

♦ “Total Need” means the complete budget (from all funding sources) for the delegated Clean Air Act, Clean Water Act and Safe Drinking Water Act program.

♦  Both the “total need” and federal funding numbers come from the certified state budget for the 2016-2017 fiscal year.

♦  These numbers only cover the EPA categorical grants for the delegated federal permitting/enforcement programs.  The numbers do not reflect separate federal grants for targeted research or pollution reduction projects like  the Albemarle-Pamlico National Estuary Program. Some of those federal grants reportedly have been targeted for elimination in Trump administration budget plans.

♦ The proposed federal funding cuts shown below are higher than those show for these same programs in the Sierra Club report because the final Trump Blueprint increased the percentage reduction over those reported earlier.

N.C. Clean Air Act Implementation

Total Need Federal Grant % Federally Funded Proposed Federal Funding Cut
$4,854,105 $2,482,845  50% – 45%

Clean Water Act Program Implementation 

Total Need Federal Grant % Federally Funded Proposed Federal Funding Cut
$14,160,554 $6,662,950   50%  -45%

Safe Drinking Water Act Program Implementation 

Total Need Federal Grant % Federally Funded Proposed Federal Funding Cut
$5,870,612 $3,316,895 50% – 45%

In sum: EPA grants provide 50% of the funding for each of the major environmental permitting and enforcement programs delegated to the state under federal law. A 45% reduction in the federal grant would result in a cut of nearly 25% to each of those state programs.  As discussed in an earlier post, many N.C. environmental protection programs have already experienced significant reductions in state funding since 2009-2010. The water quality program has been particularly hard hit.

Deep cuts to the federal grants would force the state to decide whether to make up the loss of federal funds with increased state appropriations from tax revenue or higher permit fees. The alternative would be to accept further erosion of those programs. The question may be particularly acute for the air quality program which is now entirely supported by the federal grant and permit fees.

You can find the entire Sierra Club report here .

NOTE: The original blog post has been revised to more accurately describe the release date for the Sierra Club guide and to note that information on  percentage reductions to these particular programs changed (for the worse) after release of the Sierra Club report. 

Fact-Checking the History of Coal Ash Regulation in N.C.

July 27, 2016. Misunderstanding history makes it more likely  the same mistakes will be made again. In that spirit, a fact-check of recent DEQ statements1 about the history of coal ash regulation in North Carolina:

“In 2007, a previous administration changed landfill laws and specifically exempted coal-ash ponds from many environmental requirements.”

The statement seems to be referring to the Solid Waste Management Act of 2007 which amended landfill siting and construction standards.  Two provisions related to coal ash landfills, but nothing in the law directly addressed coal ash ponds. Coal ash was not the main focus of the 2007 law, which responded to several controversial applications to construct new landfills for household waste and construction debris. As a result, the law  focused on concerns specific to those  proposals — impacts on wildlife refuges and parks; the size and height of waste disposal areas; separation from groundwater; and guarantees the landfill owner could pay for  environmental remediation.

The first of two provisions in the 2007 law affecting coal ash allowed utilities to construct a lined coal ash landfill on top of an old coal ash disposal site under specific standards. The second provision exempted coal ash landfills on the site of a coal-fired power plant from some of the new landfill siting requirements.   Coal ash landfills located on power plant sites continued to be regulated as industrial landfills under standards that required liners;  groundwater monitoring; and setbacks from waters and wetlands. The Department of Environment of Environment and Natural Resources (“DENR”) did not request either coal ash provision.

“In 2009, the state exempted Duke Energy from having to show that its coal-ash ponds were structurally sound. If that information had been required, the corroded pipe under the Dan River coal ash pond might have been found and the spill avoided.”

In 2009, the General Assembly actually repealed a state Dam Safety Act exemption for coal ash impoundments. See Session Law 2009-390.   Before 2009,  coal ash ponds had been entirely exempt from the dam safety law.  Repeal of the exemption made coal ash impoundments subject to the dam safety law  for the first time — requiring compliance with dam safety standards; regular state inspections; and DENR review/approval of plans for expansion or repair.

DEQ’s statement may be focused on language in the 2009 legislation that allowed existing coal ash impoundments to “… be deemed to have received all of the necessary approvals  from [DENR]  and the Commission for Dam Safety for normal operation and maintenance”. In effect, the law allowed impoundments built before repeal of the exemption to continue to operate as if the state had permitted the original construction.  Those impoundments, however, would be inspected going forward and required to comply with dam safety orders to address structural deficiencies.  On balance, the 2009 legislation greatly increased rather than diminished state oversight of coal ash impoundments under the Dam Safety Act.

The Dam Safety Act amendments did not cause state and federal regulators to miss critical information about the Dan River stormwater pipe that later ruptured. Both the U.S. Environmental Protection Agency (EPA) and DENR dam safety staff became aware of the stormwater pipes at the Dan River impoundment in 2009-2010. Before inspecting N.C. impoundments as part of the federal response to the TVA coal ash disaster,  EPA asked electric utilities to provide information on  structural conditions at each impoundment site in the state. Maps of the Dan River site that Duke Energy provided to state and federal inspectors incorrectly identified the stormwater pipes as concrete rather than corrugated metal.   The error meant state and federal inspectors did not have complete and accurate information as background for the inspections,  but not because the 2009 law allowed electric utilities to shield information about the impoundments — it didn’t.

Note:  It later became clear that internal Duke Energy inspection reports had flagged the metal pipes at Dan River for attention as early as the 1980s. In accepting a plea deal to a large federal penalty for the Dan River spill,  Duke Energy acknowledged a pattern of neglect that included failure to take the advice of its own engineers in 2011 and 2012 to do camera inspections of the stormwater pipes.

“In 2010 federal regulators required leaks from all coal ash ponds to be evaluated. No action was taken in North Carolina for three years.” 

By 2010,  EPA  had taken several steps to get a better handle on coal ash impoundments. In 2009, EPA  launched the nationwide effort to assess the structural integrity of coal ash impoundments.   Based on information provided by the electric utilities, EPA did on-site inspections of  eight higher risk  N.C. impoundment sites in 2009-2010 including the Dan River facility.  Inspectors from the state’s water quality, waste management and dam safety programs accompanied EPA on most of those inspections.  Also in 2009-2010, state dam safety inspectors did an initial dam safety inspection of every coal ash impoundment as the first step in bringing those impoundments under the Dam Safety Act.

On a different track, EPA  provided new guidance to states on permitting  discharges  from coal ash impoundments under the Clean Water Act ; the new guidance recognized that  discharges could result from seeps and leaks through impoundment walls.  In 2010-2012, the state water quality program began increasing  groundwater monitoring requirements for coal ash ponds and  revising stormwater permits for impoundment sites. It may be that state programs gave higher priority to  structural impoundment problems, groundwater contamination and stormwater permitting in 2010-2012 and lower priority to  addressing the water quality impacts of leaks. It is difficult to know without more information.

“In 2011 the state gave Duke Energy approval to use Sutton lake, a recreational area in Wilmington, as a dumping ground for coal ash.” 

Sutton Lake has not been used for coal ash disposal. Coal ash from the Sutton Power Plant went into one of two coal ash impoundments;  outlets release water from the impoundments to Sutton Lake. Another outlet releases water from Sutton Lake to the Cape Fear River.  The earliest Clean Water Act permit for the Sutton Plant accessible on the DEQ  website (from 1996)  treated the outlet to the Cape Fear River as the permitted discharge point and applied effluent standards there. Although the permit also put water quality limits on discharges from the coal ash impoundments to Sutton Lake, the lake was regulated as a cooling pond — part of the wastewater treatment system — rather than as “waters of the State” protected under the Clean Water Act.  Every renewal of the 5-year Clean Water Act permit from 1996 through  2011 continued that approach. Apparently water quality staff revisited the question of whether Sutton Lake should be treated as a cooling pond or as “waters of the State”  in  2011, but decided to maintain the approach used in earlier permit renewals. In 2014, the department (now the Department of Environmental Quality) looked at the issue again and concluded — correctly, I think — that the permit should be modified to treat Sutton Lake as “waters of the State” and put effluent limits on discharges to the lake. It isn’t clear why the water quality program and the Environmental Management Commission reached a different conclusion in issuing and renewing earlier permits.

“For many years Duke Energy monitored the water under its ponds and found hundreds of samples that did not meet groundwater standards. Again, no action was taken. In fact, the prior administration created a policy instructing regulators not to fine Duke if the company said it would correct the problem.”

The state water quality program  first began requiring comprehensive groundwater monitoring for coal ash constituents in 2009-2010, imposing new groundwater monitoring conditions as Clean Water Act discharge permits for the impoundments came up for renewal.  The new conditions covered key contaminants associated with coal ash and required groundwater monitoring to be done under a state-approved plan to insure monitoring wells would be appropriately placed to detect violations.  Given the  time required to install monitoring wells and collect a full cycle of monitoring results, little data  showing a  groundwater standard violation related to coal ash would have been available before 2010.  None of the groundwater violations cited in DEQ’s  2014 enforcement action concerning the Sutton Power Plant predate 2009;  most come from the period between 2010 and 2014.

Before 2009-2010, most of the state’s coal ash impoundments operated without significant groundwater monitoring for decades.  Electric utilities built many of the impoundments in the 1960s and 1970s  before any environmental regulations applied.  In the late 1970s,  the state began issuing federal Clean Water Act permits for discharges from the impoundments to rivers, lakes and streams. Environmental regulation focused on the quality of water discharged from the upper layers of the ash ponds to surface waters rather than the coal ash itself.  In the 1980s-1990s, the state began putting  groundwater monitoring conditions on the discharge permits, but the monitoring focused on very basic parameters. For the Sutton Plant,  those parameters were:   water level,  pH, chlorides, iron, arsenic, selenium and total suspended solids. Groundwater concerns had not yet focused on contaminants specifically associated with coal ash.

Groundwater concerns increased after 2000 as EPA continued to lay the groundwork for a federal coal ash disposal rule. In 2006, electric utilities began voluntarily  monitoring for contaminants associated with coal ash in the face of pressure from environmental organizations and expected federal rulemaking.  Most of the data from the voluntary monitoring could not be used in state enforcement actions.  Under state groundwater rules, a violation exists only if the impoundment causes an exceedence of groundwater standards at or beyond a compliance boundary around the pond.  (For most N.C.  impoundments, the compliance boundary is set 500 feet from the edge of the pond.)  Wells used by the utilities for the voluntary groundwater monitoring had not been placed to document groundwater standard violations at the compliance boundary.  But based on the voluntary monitoring results,  the state water quality program  put broader groundwater monitoring conditions on impoundment permits and required monitoring to be done under a state-approved well-siting plan to insure the data could be used for future enforcement.

The enforcement policy mentioned in the DEQ statement refers to 2010 groundwater enforcement guidance developed by water quality staff.  Since the expanded groundwater monitoring requirements applied to facilities that had operated for many years without monitoring, the water quality program developed a policy that put the enforcement emphasis on remediation of contamination rather than assessment of penalties for activities that had been unregulated  or lightly regulated for much of the facility’s history.

What the fact-checked history suggests:

It is difficult to contain environmental impacts 20 to 40 years after the fact. Both state and federal regulators struggled to understand and address problems associated with a method of coal ash disposal electric utilities had already invested in and become reliant on by the time environmental impacts became a concern.

The basic arc of state and federal regulation looks like this: In the 1970s,  state and federal regulators focused on discharges from existing coal ash ponds to surface waters. There was a quiet period between issuance of the first Clean Water Act discharge permits for coal ash impoundments in the late 1970s through the 1990s.  Regulators assumed the electric utilities were maintaining the impoundments properly and indicators of  groundwater contamination associated with coal ash had not reached critical mass. EPA began working on a federal coal ash disposal rule in the late 1990s, but abandoned the proposed rule in 2000 in the face of strong political opposition. Between 2000 and 2008, troubling data on groundwater and surface water pollution associated with coal ash ponds accumulated and the 2008 TVA spill undermined confidence in the electric utilities’ maintenance of impoundments.  Both state and federal regulatory efforts accelerated in 2008-2009, leading to state permitting changes and renewed efforts to adopt a federal coal ash disposal rule. (EPA finalized the federal rule in 2015.)

The issues surrounding coal ash have not been the responsibility of any one administration or a single branch of government. The history spans multiple governors of both political parties and legislative as well as executive action.  Coal ash provisions in the 2007 Solid Waste Management Act came out of direct negotiation between the electric utilities and legislators.  In  2009, the General Assembly repealed the Dam Safety Act exemption for coal ash impoundments,  but did not move a bill to set comprehensive state standards for coal ash disposal out of committee.

Leaps in state law on coal ash  management followed specific crises — the coal ash impoundment exemption from the Dam Safety Act survived until the 2008 TVA spill put a spotlight on poor maintenance. In  2009, the  General Assembly had no interest in moving comprehensive coal ash disposal legislation; that only changed after the 2014 Dan River coal ash spill .

By 2009, accumulating evidence of groundwater contamination and other water quality concerns led the state water quality program to use existing permitting authority to require more groundwater monitoring around coal ash impoundments and increase stormwater requirements. Those  efforts to use existing permitting tools more effectively laid the foundation for later groundwater enforcement actions.


 1 The statements  in bold appeared in  a recent letter by DEQ Assistant Secretary Tom Reeder to the Raleigh News and Observer.

The Dan River Coal Ash Spill and Environmental Policy

March 3, 2014.  The February 2 coal ash spill at Duke Energy’s Dan River steam station (see an earlier post for more on the spill) puts some recent and still pending environmental policy decisions in a  new light.

Preventing state environmental programs from adopting standards “more stringent than” federal standards.  In 2011, the General Assembly prohibited environmental agencies  from adopting a rule  “that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if a federal law or rule pertaining to the same subject matter has been adopted”. You can find the statute (G.S. 150B-19.3)  here.   The increasing evidence of water quality problems associated with coal ash  ponds may test those limits on state regulation —

♦  The question is whether  new state rules on  coal ash disposal or closure of existing coal ash ponds would be considered  “more stringent” than existing  federal rules.  Federal rules exempt  coal ash from regulation as a hazardous waste, but include ash as a “solid waste” and set minimum standards for solid waste landfills. On the other hand, coal ash ponds aren’t considered solid waste landfills so the solid waste rules don’t apply.  Federal  Clean Water Act rules  regulating  stormwater and wastewater discharges apply to the ponds, but nothing in the existing  federal rules requires  a coal ash pond to meet  construction standards  to minimize groundwater impacts or obligates  the utility company to move coal ash from a pond to a disposal facility with less environmental risk. Given that landscape — federal rules  address some, but not all,  concerns about coal ash disposal — can state environmental programs fill the gaps by imposing additional requirements without specific statutory authority?

♦ The exceptions in G.S. 150B-19.3 are inadequate to get ahead of an environmental  problem that poses a long-term risk, but  not a   “sudden, unforeseen” threat.  Few of the problems associated with coal ash ponds would be considered sudden or unforeseen. Both federal and state regulators have long known that  unlined ash ponds pose  some  risk of groundwater contamination. The massive spill at  TVA’s Kingston plant in 2008  focused attention on the possibility of  structural failure of a coal ash  impoundment.  The U.S. Environmental Protection Agency  has been working on federal  coal ash disposal regulations off and on for over ten years because of these and other concerns. As obvious as the problems surrounding coal ash disposal have now become, the exceptions in G.S. 150B-19.3 don’t seem to give environmental agencies a way to address those problems through rulemaking.

♦  If state agencies  need  additional  statutory authority   to adopt  state rules that go beyond current federal regulation of coal ash disposal,  rulemaking could not begin until after the 2014 legislative session that  begins in mid-May.  Rule adoption often takes two years. The other alternative would be  for the General Assembly itself to set standards for coal ash disposal through legislation. Legislation can move much more quickly than rulemaking, but the last effort to enact state legislation on coal ash  failed due to opposition from the utility companies. See  this  post for more information on  earlier state legislation and  a link to the 2009 coal ash disposal bill.

Efforts to limit state review of engineered plans and drawings.  North Carolina’s professional engineers (PEs)   have lobbied for several years to limit state review of plans prepared  by  PEs and to constrain the ability of regulatory staff to require  changes to  engineering  plans. The most recent effort  led to language in the Regulatory Reform Act of 2013 (Session Law 2013-413)  requiring a study of state and local review of engineering plans. Section 58 of S.L. 2013-413  requires DENR, the Department of Transportation, the Department of Health and Human Services and local governments to study:

“(iii) the standard scope of review within each permit program, including whether… staff are requiring revisions that exceed statutory or rulemaking requirements when evaluating such permits or plans; [and]

(iv) opportunities to eliminate unnecessary or superfluous revisions that may have resulted in the past from review processes that exceeded requirements under law, and opportunities to otherwise streamline and improve the review process for applications and plans submitted for approval.”

The history and recent failure of the Dan River stormwater pipe reinforces the value of having a second, objective review of engineering plans and decisions.  The  early decision by utility company engineers (before state regulation) to expand the ash pond over a metal stormwater pipe and the apparent failure to plan for maintenance of the pipe likely contributed to the spill.   In the aftermath of the February spill, it became clear that current Duke Energy staff  did  not know how the stormwater pipe had been constructed — incorrectly  assuming that  the entire stormwater pipe was concrete.    Even in real time response to the Dan River spill, Duke Energy  and  DENR  engineering staff  sometimes reacted very differently to the same information. Duke Energy did a camera inspection of  a second, smaller stormwater pipe at the Dan River site to check its condition.  According to news reports,  Duke Energy staff  planned no immediate action based on the results of the camera inspection other than continued monitoring.  A state dam safety engineer who looked at the same video showing  leaks and pooling of water in the  pipe concluded that  the  second  pipe could also be discharging coal ash to the Dan River. Water quality testing  confirmed high levels of arsenic in discharges from the pipe and the dam safety program ordered Duke to close the second pipe within 10 days.  When an error carries potentially high risks or costs,  review of engineering plans and decisions can be critical — simply because  state and local environmental staff will look at the same situation through different eyes.

Note: The Study of Review of Engineering Work has been submitted to the legislature’s Environmental Review Commission and the General Assembly could consider legislation on state/local review of engineering plans in the upcoming legislative session.

Limiting DENR’s ability to order steps to contain groundwater contamination. The Regulatory Reform Act of 2013 also does two significant things to limit (or defer) steps to contain or cleanup groundwater contamination: 

♦ The law makes the property line  the presumed “compliance boundary” for groundwater contamination caused by a permitted waste disposal facility  (including  a  coal ash pond).  State rules allowed for some exceedence of groundwater standards near a waste disposal area, but generally put  the compliance boundary at 250 feet around the footprint of the facility or  at the property line whichever is closer.  Causing an exceedence of  groundwater standards beyond the compliance boundary violates the permit. The new law  presumes  groundwater contamination associated with a waste disposal facility  can be allowed to migrate to the property boundary — including any  adjoining  property in the same ownership. The law does not change existing compliance boundaries set by permit, but sends a strong message about future permit terms  and regulatory requirements. The change would potentially allow the owner of a waste disposal facility to contaminate a much greater area of groundwater without any obligation to remediate. Using the property line as the compliance boundary also leaves little safety margin to protect the groundwater rights of  nearby  property owners.

♦ The law  limits DENR’s ability to require the operator of a permitted waste disposal facility to take steps to remediate or contain groundwater contamination within the compliance boundary. The law ties DENR’s hands until the contamination has migrated beyond the compliance boundary unless DENR can show that:

(1)   The contamination has already caused a water quality violation in adjoining classified waters  or a violation “can be reasonably predicted to occur”;

(2)  The contamination poses an imminent threat to the environment, public health, or safety;

(3)  The contamination will cause a violation of any standard in groundwater occurring in the bedrock, including limestone aquifers, unless  the violation has no  potential to adversely affect a water supply well.

At the very least, DENR will have to meet a significant new burden before directing the owner of a waste disposal facility to take steps to prevent further migration of groundwater contamination.  It appears that clear evidence of groundwater contamination  moving  offsite — affecting another property owner’s groundwater  — will not be enough by itself to allow DENR to require steps to contain the contamination.  DENR  will have to  demonstrate that  groundwater standards will be violated. In the worst case, the horse will be well out of the barn before the state can act.

Reorganization and Review of N.C. Water Programs

August 7, 2013. An earlier post talked about reported plans for reorganization of water programs in the Department of Environment and Natural Resources and legislation directing DENR to combine the Division of Water Resources and the Division of Water Quality.  Since then,  DENR’s plans have become public and the General Assembly  adopted budget provisions related to the reorganization. On  August 1, 2013,  Secretary John Skvarla announced that all of the stormwater programs in the Division of Water Quality would move to the Division of Mineral, Energy and Land Resources effective that same day and the remaining water quality programs would become part of a reorganized Division of Water Resources. You can find the press release here.

Stormwater. Transfer of the stormwater programs significantly  changes the responsibilities of the Division of Mineral, Energy and Land Resources.  The Division of Water Quality  managed a number of different state and federal stormwater programs, including: a state coastal stormwater  program  designed to protect shellfish waters from bacterial contamination;  stormwater control requirements associated with the Neuse River, Tar-Pamlico River, Falls Lake and Jordan Lake nutrient strategies;  federal  stormwater programs (delegated to the state by EPA)  that issue permits for municipal and industrial stormwater discharges and for  stormwater generated by active construction sites. The Division of Energy, Mineral and Land Resources (DEMLR)  has no stormwater experience other than a supporting role in  construction stormwater  permitting   (through the DEMLR sedimentation program)  and no experience managing  federal  Clean Water Act programs. Taking on a much broader range of stormwater programs and responsibility for delegated federal programs could make for a steep learning curve.

Transfer of the stormwater programs to DEMLR separates NPDES stormwater permitting from NPDES permitting for wastewater discharges.  (National Pollutant Discharge Elimination System — or “NPDES”– permits are the federal  Clean Water Act permits required for discharge of pollutants to surface waters.)  The move also separates programs that  work together to reduce pollution loading to water bodies — like Falls Lake and the Neuse River estuary — that have become impaired by  pollutants coming from both point sources and nonpoint sources.

One  footnote on the stormwater move — legislation  that directs DENR to combine programs in the Division of Water Quality and the Division of Water Resources  assumes that  stormwater programs will remain in the reorganized Division of Water Resources.  The section of House Bill 74 (Regulatory Reform Act) that directs DENR to  reorganize the water programs also makes changes in a number of water quality laws to reflect the reorganization and substitutes  “Division of Water Resources” for “Division of Water Quality”   in state stormwater laws. I am guessing that reflects a lapse in communication rather than a conflict between DENR and the General Assembly – but in the short term, several state laws seem to  identify the Division of Water Resources as the stormwater permitting agency.

Other Water Quality Programs.  Remaining Division of Water Quality (DWQ) programs will move into the reorganized Division of Water Resources (DWR) under director Tom Reeder. The state budget  attached a $2 million budget reduction to the water program reorganization.  Using the reorganization to cut programs and people has risks. After four years of budget cuts, it will be difficult to reduce the combined water programs by another 12.4%  without hurting critical functions. In reality,  there has been little overlap in the activities of the two divisions; DWQ had responsibility for water pollution programs and DWR focused on water supply  — quantity rather than quality. It is not clear that the additional budget reduction will leave the state with effective water quality and water supply programs.  DENR will also need to be sure program  cuts don’t threaten its  ability  to meet federal requirements for delegated permitting authority under the Clean Water Act and Safe Drinking Water Act.   Those  requirements go beyond simply having people to issue permits. In addition to  meeting regulatory and planning standards set in federal law,  the federal grant agreements  link to specific performance measures for  state permitting and compliance activities. The earlier post on reorganization proposals talked about some of the  program requirements linked to delegation of Clean Water Act permitting.

A July  video  message from Division of Water Resources director, Tom Reeder,  to  staff in the Water Resources and Water Quality divisions provides some insight into  next steps for the water  programs.  New information about the reorganization was limited, although Reeder said the new organization of around 700 employees would have fewer managers (and no deputy director).  After briefly talking about the reorganization, Reeder described plans for a review of water programs and rules that will begin right away and be completed by the end of December. The purpose of the review goes beyond identifying duplication of programs in the newly combined divisions. Reeder describes it as an effort to eliminate rules and programs that  are overly burdensome or  ineffective.

In the  video, Reeder  specifically mentions riparian buffer rules as a program area needing review. It isn’t clear whether  that means minor adjustments or wholesale revision of the buffer rules, but  the  buffer rules are a good example of  one potential pitfall in  the review process — some rules are part of larger water quality strategies and  the burdens and benefits need to be looked at in that context. Buffer rules put an additional burden on real estate developers and property owners, but  using  buffers  as part of a broader  nutrient reduction strategy can   lower  the  cost  to  other nutrient sources  (including municipal wastewater treatment plants and agricultural operations).  Continuing to balance the burden among point and nonpoint sources will be particularly important where buffer rules rules account for some of the  load reduction required to meet an  EPA-approved Total Maximum Daily Load for impaired waters.

The Division of Water Resources has formed an outside involvement committee to help with the review of water programs and rules. You can find the Reeder video on YouTube. Discussion of the reorganization and review of water rules begins around the 7-minute mark.

Legislative Wrap-up I: Water Quality

July 30, 2013:  A summary of legislative action on water quality-

Budget-  The final budget directs the Department of Environment and Natural Resources (DENR) to combine programs in the Division of Water Quality (DWQ)  and the Division of Water Resources DWR) and reduces the budget for the reorganized programs by $2 million.  The $2 million cut amounts to a 12.4% reduction to the combined programs. The budget also make two specific  program cuts  that reduce appropriations for water resource and water quality programs by another $735,257.  Total reductions may go even  higher than $2.7 million if water resource/water quality  programs also share in the  2% department-wide reduction required by  the final budget.   Although both the Division of Water Resources and the Division of Water Quality deal with water, the two have very different responsibilities and little overlap in functions; it  will be  difficult for  the reorganized programs to absorb another 12.4 % cut  without hurting program delivery.

Division of Water Quality (DWQ) has responsibility for preventing and reducing water pollution in the state’s rivers, lake, streams and groundwater supplies.  By delegation of authority from the U.S. Environmental Protection Agency, DWQ  issues federal Clean Water Act permits to wastewater and stormwater  dischargers. DWQ also issues state water quality permits for animal waste management systems, injection wells, and for land application of waste.

Division of Water Resources monitors water supply – the amount of water in rivers, lakes, streams and aquifers rather than its quality. DWR has responsibility for state and local water supply planning; drought monitoring and drought response; and approval of  water transfers from one river basin to another (for example, taking water from an intake on the Neuse River to provide drinking water to a city  in the Cape Fear River basin).  The Public Water Supply section in DWR enforces the federal Safe Drinking Water Act, which regulates drinking water systems to ensure that the water coming out of the tap is safe to drink.

Both divisions have river basin planning programs –  DWR water supply plans  use data on water use to model for future water supply  and DWQ  water quality plans track data on pollutant levels,  identify sources of  pollution and provide a foundation for addressing water  quality  problems.  The two types of planning complement each other, but neither can take the place of the other.  It will be important to continue to have strong water quality and water supply planning programs if the state is to have a scientific and technical basis for good water policy decisions.

The budget will test DENR’s  ability to continue to deliver good science, timely permit reviews, compliance assistance, and enforcement with fewer resources. The department will also have to keep an eye on the effect of reduced state appropriations on  federal grants supporting programs in the two divisions. The state receives a significant amount of  federal grant money to support activities required under the delegated Clean Water Act and Safe Drinking Water Act programs.  Those grants require a certain level of state “match” money — which is often provided in the form of state-funded positions in those programs.

Jordan Lake –  Legislation delays further implementation of the Jordan Lake Nutrient Strategy for three years  (Senate Bill 515).  The General Assembly had already delayed  the original Jordan Lake compliance dates for reducing  the amount of  nitrogen and phosphorus in wastewater discharges (until 2016) and for implementing new development stormwater programs (until 2014). The practical effect of the bill will be to  push those dates out three more years.  A number of local governments in the Jordan Lake watershed have already started implementing  local stormwater ordinances and can continue with those programs. The purpose of the delay is to allow the state to “[explore]  other measures and technologies to improve the water quality of the Lake”.  A related budget provision  earmarks   $1.35 million from the 2013-2014 appropriation for the Clean Water Management Trust Fund  for a pilot project to test the use of technology to improve water quality in Jordan Lake.   The budget provision describes the technology to be tested very specifically in three pages of bill text and seems  to direct funds to a particular product.  Both in committee and on the floor of the House, legislators identified the technology as SolarBee— a technology used to aerate water tanks and raw water reservoirs.  The bill exempts the pilot project from normal state contract procedures, which means DENR will not be required to advertise for bids.

Prospects for the success of the pilot project are already in doubt. A  prominent North Carolina scientist, Professor Emeritus Kenneth H. Reckhow of Duke University, has said that aeration technologies are not effective in large water bodies like Jordan Lake.  Even if the  technology can improve in-lake conditions, the U.S. Environmental Protection Agency  has put the state on notice that  in-lake treatment cannot substitute for pollution reductions required under the Clean Water Act (7_10_2013 Letter to Rick Glazier re B Everett Jordan Reservoir TMDL-1).  If EPA holds to that position, the technology  will fail its primary purpose — which is to relieve upstream communities in the Jordan Lake watershed  of the need to  invest in wastewater treatment plant upgrades and stormwater controls on new development.

Groundwater (and possibly coal ash) – Section 46  of  House Bill 74 (Regulatory Reform Act)  seems to narrow DENR’s ability to address groundwater contamination caused by a permitted waste disposal site.  When the state issues a  permit for land application of  waste or for  waste disposal in a landfill, the permit sets a groundwater compliance boundary. Some degree of groundwater contamination will be allowed inside the compliance boundary,   but the permit holder cannot cause groundwater  standards to be violated outside the compliance boundary.   The new language in House Bill 74  continues to allow the Environmental Management Commission (EMC) to set compliance boundaries by rule and by permit, but creates  a presumption that the compliance boundary will be the property line. (By comparison, landfill permits have  generally set the groundwater compliance boundary at 250 feet from the actual waste disposal area.)

The bill then goes on to limit the circumstances in which  DENR can require  “cleanup, recovery, containment, or other response” to groundwater contamination inside the compliance boundary. Before requiring any action inside the compliance boundary, DENR would have to show that the groundwater contamination: 1. has already caused a violation of water quality standards in nearby surface waters or can reasonably be predicted to cause a water quality standard violation; 2. presents an imminent threat to the environment or to public health and safety; or 3.causes a violation of groundwater standards in bedrock (which seems to mean contamination of deep groundwater).

The presumption that the property line will be the compliance boundary  will likely create pressure on the EMC to allow much larger compliance boundaries  than in the past. Expansion of the compliance boundary carries with it the possibility of  larger areas of groundwater contamination. The new law also makes it more difficult for  DENR   to require  a permit holder to take action inside the compliance boundary –even to contain or reduce the flow of contaminated groundwater off site.   DENR could only require steps to contain contaminated groundwater by showing that the groundwater contamination had caused –or will cause — a specific water quality violation or an imminent threat to health, safety or the environment. The fact that the contamination has moved beyond the compliance boundary (and perhaps already migrated off  the property and toward a river or lake) will not be enough. The clear risk will be that  acting only  after a problem already exists will create a larger and more expensive problem to remedy in the future.

The provision appears to be linked to an ongoing controversy and threatened litigation over groundwater contamination and seeps from ponds where coal-fired power plants have disposed of coal ash. The Catawba Riverkeeper has filed a notice of intent to sue under the Clean Water Act over contamination from two coal ash disposal sites — a  Duke Energy  coal ash pond associated with the Riverbend Steam Station and a Progress Energy coal ash pond in Asheville. The Duke Energy coal ash pond is located on the banks of Mountain Island Lake and near a water intake for the City of Charlotte.  Monitoring around the coal ash pond has detected contaminants in groundwater that exceed groundwater standards, but the Division of Water Quality has not yet decided whether corrective action will be necessary. The Riverkeeper’s complaint claims that contaminants from the coal ash are reaching the lake in seepage from the impoundment and through a groundwater connection to the lake. The House Bill 74 language means that groundwater violations alone –even beyond the compliance boundary — would not necessarily require  steps  to  contain  an ongoing flow of contaminated groundwater to the lake.  DENR would first have to show that the groundwater contamination is causing or will cause an actual water quality standard violation in the lake or  an imminent threat to health, safety or the environment.

Regulatory Reform – More on regulatory reform in a later post, but House Bill 74 includes a requirement that agencies review and readopt existing rules of “substantive public interest”   every ten years.  The bill defines “substantive public interest” so broadly that it will  cover  every environmental rule of any real substance. The state’s Rules Review Commission will set the initial schedule for review of rules, but the bill directs the commission to schedule surface water and wetland standards for review in the first round of rule review.

Miscellaneous – This post only covers the most significant water quality legislative. House Bill 74 contains a number of other minor changes, including technical amendments to the laws on permitting animal waste management systems and an exemption from riparian buffer requirements for agricultural ponds.

Failed Water Quality Legislation – One major change did not happen. The N.C. Homebuilders Association had pushed legislation to eliminate state water quality permitting requirements for wetlands that do not fall under federal Clean Water Act permitting jurisdiction. An earlier post provides some background on the difference between federal and state wetlands jurisdiction.  The language first appeared in a Senate farm bill (Senate Bill 638), but was dropped from the bill once it reached the House. The Senate agreed to the change — possibly because farmers already have broad exemptions from wetland permitting requirements. During the last few days of the legislative session, the exemption language popped up again  in a Senate committee substitute for House Bill 938. The House sent the bill to committee and never took it up for a concurrence vote. The bill will still be eligible for consideration next year when the General Assembly reconvenes in May.

Removing State Protection for Isolated Wetlands

June 26, 2013: An earlier post talked briefly about a section of Senate Bill 638 (N.C. Farm Act  of 2013) that would eliminate water quality protection for isolated wetlands by excluding wetlands that fall outside federal Clean Water Act jurisdiction from the definition of “waters of the state”. Although the language has changed somewhat, the bill approved by the Senate last month still has the effect of removing water quality protection from wetlands that fall outside federal permitting jurisdiction.  The limit on federal jurisdiction has nothing to do with the value of the wetland — it has to do with how the U.S. Constitution divides responsibility between the  federal  government and the states. Congress’ authority to regulate interstate commerce has been the constitutional basis for federal environmental laws, so Clean Water Act permitting programs only apply to navigable waters (including tributaries and wetlands connected to those waters). Wetlands that have no connection  to navigable waters  fall entirely under state jurisdiction. Section 20 of Senate Bill 638 (as it passed the Senate)  would remove state protection for those “isolated” wetlands and allow the wetlands to be filled, excavated or used for waste disposal without a water quality permit.

As noted in the earlier post, the wetlands provision appears in a farm bill but developers may get most of the benefit. Since then, I have looked back at the state’s isolated wetlands rules and found that most (and possibly all) agricultural activities are already exempt.  The isolated wetlands permitting rule, 15A NCAC 2H.1301, has a list of exemptions from the permit requirement and the first is for  “[a]ctivities that are described in 15A NCAC 02B .0230”.  The activities described in 15A NCAC 02B.0230 include:

     (1)  normal, on-going silviculture, farming and ranching activities such as plowing, seeding,   cultivating,minor drainage and harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices…

(2)  maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structuresand other maintenance, repairs or modification to existing structures as required by the NC Dam Safety Program;

(3)  construction and maintenance of farm or stock ponds or irrigation ditches.  In addition, new pond construction in designated river basins with riparian buffer protection regulations also must comply with relevant portions of those regulations;

(4)  maintenance of drainage ditches, provided that spoil is removed to high ground, placed on top of previous spoil, or placed parallel to one side or the other of the ditch within a distance of 20 feet and spoils are placed in a manner that minimizes damages to existing wetlands; and ditch maintenance is no greater than the original depth, length and width of the ditch;

(5)  construction of temporary sediment control measures or best management practices as required by the NC Sediment and Erosion Control Program on a construction site…; and

(6)  construction or maintenance of farm roads, forest roads, and temporary roads for moving mining equipment where such roads are constructed and maintained in accordance with best management practices…

The existing agricultural exemptions are so broad, that it is difficult to think of anything that may still be a problem for farmers — but at the very least an amendment intended to protect agricultural activity could be much narrower than the language adopted by the Senate. Having easily passed the Senate, the bill is now in the House where the path has become a little rockier. It appears that the N.C. Homebuilders Association has been lobbying hard for the provision, but a new version of the bill approved by a House Judiciary subcommittee this morning dropped the wetland language. The bill now goes to the House floor; an effort to amend the bill to restore language excluding isolated wetlands from water quality permitting requirements is likely.

The McCrory Administration Remakes the N.C. Water Quality Program

June 25, 2013:   The N.C. water quality program has been innovative, award-winning and a frequent target of complaints — complaints about  excessive regulation and complaints about poor customer service. The complaints probably result in part from the reach of water quality rules. Over the last 15-20 years,  water quality programs have expanded to address pollution that gets to rivers and streams indirectly —  in runoff from parking lots, roads, lawns and agricultural activities, for example. The expanded scope of the water quality program responded to specific state water quality problems and a new (beginning in the 1990s)  federal focus on “nonpoint sources”.  (The term “nonpoint source” distinguishes these indirect sources of water pollution  from “point sources”, such as pipes and ditches,  that directly discharge waste to rivers, lakes and streams.) In the 1970s and 1980s, the Division of Water Quality  mostly regulated municipal wastewater systems and industrial discharges to rivers and streams.  A simple subdivision development only needed a water quality permit if the  construction involved filling a wetland or stream.  Since the 1990s,  water quality rules have had a much greater effect on real estate development, agriculture, and even the activities of individual property owners.  Any regulatory program that touches so many citizens and activities will generate controversy and complaints — some legitimate and  others not.

The McCrory administration has begun moving toward a major reorganization of the  water quality programs in DENR’s Division of Water Quality (DWQ). It is not yet clear what the state’s water quality program will look like in the end or even what the McCrory administration wants to achieve,  but Secretary John Skvarla has been publicly and harshly critical of the Division of Water Quality’s customer service. Word has  started to get out about  first  steps in reorganization of the division.  Both the division director and deputy director  have recently  taken new assignments;  former director Chuck Wakild  will retire in August.  Reports are that the first reorganization move will be to transfer all  stormwater programs from the Division of Water Quality  to the Division of Energy, Mineral and Land Resources effective  August 1 2013.  The transfer will have a big impact — the Division of Water Quality now manages a number of different state and federal stormwater programs.  State stormwater programs include coastal stormwater  rules designed to protect the quality of shellfish waters and stormwater requirements associated with the Neuse River, Tar-Pamlico River, Falls Lake and Jordan Lake nutrient rules. Federal  stormwater programs  (Clean Water Act programs delegated to the state by EPA)  issue permits for municipal and industrial stormwater discharges and construction stormwater permits for active construction sites.

The Division of Energy, Mineral and Land Resources (DEMLR)  has no stormwater experience  (other than a supporting role in  DWQ’s issuance of construction stormwater permits)  and no experience managing  federal  Clean Water Act programs. Taking on the stormwater programs will greatly increase the portfolio of a division already struggling to meet the enormous workload associated with shale gas rule making.  The move will also separate  federal  stormwater programs from other federal Clean Water Act permitting programs delegated to DWQ, requiring a bit more effort to coordinate water quality strategies that require control of both point and nonpoint pollution sources. It appears that the remaining DWQ  programs will become part of an expanded Division of Water Resources.

As the McCrory administration  moves forward with reorganization plans, a few things to watch for and think about:

Will the reorganized programs have enough  staff to  review permits, inspect  projects,  enforce  environmental  laws and meet federal grant requirements? Even in the construction stormwater program where there has long been a cooperative agreement between DWQ and DEMLR’s sediment program,  merging staff from the two divisions does not yield a single program with enough staff to meet its responsibilities under state and federal law.  Budget cuts in the sedimentation program over the last five years have take too great a toll.  The temptation to use reorganization as a way to cut positions will be great; it should only be done if the new organization can continue to meet all of its state and federal responsibilities. The same holds true for transfer of DWQ programs to the Division of Water Resources; some programs in the two divisions  appear to do similar things, but in reality have very different purposes.  Reorganization decisions will need to keep those different  program functions in mind.  Staffing levels also affect the federal grants that support much of the water quality program;  state-funded staff positions provide much of the required state match for federal grant dollars and at a certain point eliminating state-funded positions jeopardizes the federal funding.

Will reorganization decisions maintain all of the functions needed to meet Clean Water Act requirements?  Permits are only a small part of the state’s federal Clean Water Act responsibilities. The state must also have an ongoing water quality planning program  that regularly reviews water quality standards; identifies rivers, lakes and streams that are not meeting water quality standards;   develops  plans to improve water quality; and develops best management practices to reduce nonpoint source pollution.

The Division of Water Quality’s water quality planning program provides much of the information and analysis needed to meet the planning requirements of the Clean Water Act.  Planning programs may appear less critical than permitting, but the planning program provides the monitoring data needed to evaluate the effectiveness of water quality rules, pinpoint pollution problems,  and develop the right solution. A planning program that meets federal requirements is also necessary for the state to  have a delegated Clean Water Act permitting program.

Will the reorganization maintain the expertise needed to evaluate water quality trends, find solutions to impaired water quality, provide good advice to permit applicants, and advocate the state’s position on water quality policy to EPA? Many water quality programs (especially the delegated federal programs) are very complex. Water quality staff need to understand both the science and the law to help permit applicants through the process. There are also times that EPA and the state will disagree on an issue that affects a Clean Water Act permitting program;  DENR will need the knowledge and experience to make a case for the state’s position.

— Will changes that affect federal Clean Water Act programs require EPA approval? The answer  will depend on what kind of changes are made (to organization structure, staffing and program functions)  and how the existing program description approved by EPA was written. Generally, program changes have to be submitted to EPA for approval along with a certification by the Attorney General that the water quality program continues to meet requirements of the Clean Water Act.

N.C. has made tremendous gains in water quality over the last 20 years. Some of the more visible signs of progress have been better management of swine waste, innovative approaches to stormwater control, creation of GIS tools to better predict stream and wetland impacts, and development of river-basin water quality plans that provide a big picture of water quality conditions, threats and trends. One of the real challenges of environmental protection programs is that success often means avoiding a problem — success is the swine waste lagoon that doesn’t fail, the fish kill that doesn’t happen, drinking water supplies unaffected by algae. The challenge for the McCrory administration will be to improve what needs to be improved in the state’s water quality programs without undermining their effectiveness. Water supply will be key to the state’s economic future — and the quality of the water is as important as the quantity.

Note: A new version of House Bill 94 (Amend Environmental Laws) came up in the Senate Agriculture and Environment Committee this  morning. The bill included a new section that directs DENR to combine the Division of Water Quality with the Division of Water Resources.  The senator presenting the bill indicated that DENR had asked for the reorganization authority, but the details of the bill language do not match up with reported plans for moving the stormwater programs to the Division of Energy, Mineral and Land Resources.  The version of House Bill 94 approved by the committee shifts the stormwater programs to the Division of Water Resources with other water quality programs. Either the DENR plan has changed or the bill needs a little more work.

Cross-over Scorecard

May 29, 2013:

Now that the  May 16 cross-over deadline has come and gone, it is time to look at the bills that  survived and the bills left on the battlefield. (Under House and Senate rules, most bills  had to pass at least one chamber and “cross over” to the other by May 16  to remain eligible for consideration in the 2013-14 legislative session. There are exceptions for  revenue bills, appropriation bills, redistricting bills and constitutional amendments.) I am going to focus on some of the most significant environmental bills; you can find a complete list of bills that survived cross-over here.

The Bills Left Behind

The two environmental bills that  received the most attention earlier in the session,  but failed to reach a floor vote  were  House Bill 298 and its Senate  counterpart (Senate Bill 365). With the support of a number of conservative political organizations — including Americans for Prosperity — the bills proposed to repeal the state’s renewable energy portfolio standard (REPS).  An earlier post talked about the politics of the renewable energy standard and  the practical problem the bill presented for Republican  legislators. The tension between the practical (jobs) and the political (conservative opposition to  support for renewable energy) played out in both the House and the Senate committees.  In the end, neither bill got all of the committee approvals needed to get to  a floor vote.

Some  other environmental bills that failed to make cross-over:

Senate Bill 679  would have halted reductions in groundwater withdrawals from two depleted aquifers in the Central Coastal Plain, maintaining withdrawals at current levels. In  the 15 Central Coastal Plain counties,  state rules have required large water users to gradually reduce withdrawals from  the  Upper Cape Fear and  Black Creek aquifers by as much as 75% to allow the aquifers to recover. The bill proposed to  cap  the required reductions in water withdrawals at 25% unless groundwater in the aquifers  dropped below 2012 levels.

House Bill 770  would have suspended enforcement of  state and local  water quality rules for the Falls Lake watershed rules for two years and required a study of alternatives to the nutrient rules.

House Bill 983  proposed to  designate red drum, spotted sea trout and striped  bass as coastal game fish. The  game fish bill has become a flashpoint in an ongoing  tug of war between recreational fishermen (who want the game fish designation as a way to prevent over-fishing of the species through use of commercial nets and trawls) and  commercial fishermen (who don’t).

Technically, all of the  bills above are dead for the 2013-2014 legislative session. BUT there are ways around the cross-over rule.  One way to revive a dead legislative proposal is to put the  language into another  bill  — one that is still eligible for adoption.  One reason to read bills very carefully in the last few weeks of a legislative session.

Bills that Made the Cross-Over Deadline

Among the environmental bills still eligible for adoption:

House Bill 74 creates a complicated process for review of existing state rules — potentially leading to automatic repeal of environmental rules that are not readopted on a schedule set by the state’s Rules Review Commission. An earlier post talks about  House Bill 74 and  its Senate counterpart (Senate Bill 32). The Senate bill never got to the Senate floor for a vote.

House Bill 94 (Amend Environmental Laws 2013) has a number of relatively minor changes to environmental laws. Many, but not all,  of the changes were recommended by the Department of Environment and Natural Resources. One change to note —  the bill again extends the deadline for  some underground petroleum storage tanks located near water supply wells or high quality surface waters to have secondary containment.  Since 2001, secondary containment has been required for new tanks installed  within 500 feet of a public water supply well or within 100 feet of a private well.  Secondary containment is also required for tanks located within 500 feet of shellfish waters and other water bodies with exceptional water quality. For tanks installed between 1991 and 2001, House Bill 94 would extend the deadline for providing secondary containment  to 2020.

House Bill 300  gives coastal cities clear authority to deal with nuisance situations on the beach. (Similar language appears in Senate Bill 151.) An earlier post  describes the court case that prompted the legislation.

House Bill 628  would prohibit new state building projects from seeking a Leadership in Energy and Environmental Design (LEED)  certification as environmentally sustainable and energy efficient under standards set by the U.S. Green Building Council.  (LEED certification is entirely voluntary; the Green Building Council does not have any regulatory authority.) An earlier post explains the North Carolina forest products industry concern about the Green Building Council’s  LEED sustainability standard for wood.

House Bill 938  deals with wetlands and stream mitigation. The bill  legislatively sets the mitigation value for isolated wetlands at 1/3 the value of  wetlands  adjacent to surface waters. The bill also establishes the mitigation value of intermittent streams at 1/3 the functional value of a perennial stream. The changes would reduce the amount of mitigation required by the state for development projects that impact isolated wetlands and intermittent streams.

House Bill 1011  is the new bill that changes appointments to a number of state boards and commissions, including the Environmental Management Commission (EMC)  and the Coastal Resources Commission (CRC). The bill is a  House replacement for Senate Bill 10 — the original board and commission reorganization bill — which crashed and burned when the House refused to adopt a negotiated compromise between  House and Senate versions of the bill. Note:  Senate Bill 402 (the budget bill)   has similar  EMC and CRC appointment language.

Senate Bill 76 makes a number of changes to the Mining and Energy Commission, the state Energy Policy Council and laws on  oil and natural gas production. One of the most significant changes would allow certain types of wastewater from hydraulic fracturing to be injected into deep wells for disposal. State law has not allowed underground injection of any type of wastewater since the 1970s. See an earlier post for more background on  underground injection of waste.

Senate Bill 112 ( Amend Environmental Laws 2013). The Senate bill  contains some things not found in the House version including a  section allowing  material from land clearing and right of way maintenance to be taken off site and burned without an air quality permit.The current law requires a permit for open burning  off-site unless the material is taken to a permitted air curtain burner.

Senate Bill 151 makes changes to fisheries laws and, like House Bill 300,  clarifies local government authority in public trust areas. The bill also makes significant changes to the law allowing construction of terminal groins to stabilize inlets at the North Carolina coast. After prohibiting permanent erosion control structures for nearly 40 years, the General Assembly amended state law in 2011 to allow construction of terminal groins at inlets. The 2011 legislation only allowed  construction of four terminal groins as a pilot project. Senate Bill 151 removes the limit on the number of terminal groins permitted even though no groins have been  built yet — and no new information on groin impacts provided by  the pilot project. The bill repeals language allowing the use of a terminal groin only if  the shoreline cannot be stabilized in other ways. The bill also weakens protection of nearby property owners;  the  bond  required for  groin construction would no longer  cover property damage.

Senate Bill 341 makes changes to the interbasin transfer law that requires state approval to move  water from one river basin to another. (Transfer of 2 million gallons per day or more requires a certificate from the state’s Environmental Management Commission.) For the most part, the bill simplifies the  approval process for:  modification of an existing interbasin transfer;   new interbasin transfers to provide water to offset reductions in groundwater withdrawals in the Central Coastal Plain Capacity Use Area; and  new interbasin transfers in certain coastal counties.

Senate Bill 515  would repeal state water quality rules that require reductions in the  discharge of  nitrogen and phosphorus to Jordan Lake and its tributaries and set up a legislative study  to identify alternative ways to protect water quality in the reservoir.  This post provided background on Jordan Lake’s  pollution problems and the history of the rules that Senate Bill 515 would repeal.

Senate Bill 612 (Regulatory Reform Act of 2013) would generally  require state environmental programs to repeal or change environmental standards that go beyond requirements of a federal rule on the same subject.   See this earlier post  for more detail on what the change or repeal requirement could mean. Note:  A section of Senate Bill 612 repealing the Neuse River  and Tar-Pamlico River stream buffer rules was removed from  the bill  before Senate adoption.

Senate Bill 638, among a number of other things, would eliminate the need for a water quality permit to fill or discharge waste to a  wetland that is not considered “waters of the United States” under the Clean Water Act. See an earlier post  for more background.

A Rush of Environmental Legislation

May 12, 2013: The bill “cross-over” deadline arrives this week. By May 16, most  bills  must pass either the House or the Senate and “cross over” to the other chamber  to avoid sudden death. (There are exceptions for finance bills, budget bills and constitutional amendments.) Because of the deadline, bills have been flying out of committees and to the House and Senate floor — leading to a flurry of posts. Two more bills that came out of committee last week (and are scheduled for votes this evening on the Senate or House floor):

Senate Bill 638 (N.C. Farm Act of 2013) makes  a  significant change to state water quality law by excluding  any wetland that is not considered “waters of the United States” from protection under the  state’s water quality permitting requirements.  The bill  takes a term (“waters of the United States”)   that  describes  federal  Clean Water Act  jurisdiction and  uses it  to  remove state protection for  wetlands that fall outside federal jurisdiction.  For reasons that mostly have to do with limits on federal authority under the Commerce Clause of the U.S. Constitution, not all state waters or wetlands are considered “waters of the United States”.  The limit on federal jurisdiction has nothing to do with the  importance of the wetland — it has to do with how the Constitution divides responsibility between the  federal  government and the states. The change in definition would mean that  someone could fill or discharge pollutants to wetlands that fall outside federal jurisdiction without any water quality  permit from the state. In committee, the change was described as one intended to help farmers, but developers are likely to benefit more.

House Bill 677 (Local Government Regulatory Reform)  came out of the House Regulatory Reform Committee. Language in the bill could interfere with efforts  to  keep the state’s urban areas in compliance with the  federal air pollution standard for ozone.  Meeting the ozone standard will be an increasing challenge as  population grows  and the ozone standard becomes tighter.  An area that fails to meet the ozone standard risks losing federal highway funding and new industrial development projects.  House Bill 677  prohibits cities and counties from adopting an ordinance that “[r]equires an employer to assume financial, legal, or other responsibility for an employee’s carbon footprint, which may result in the employer being subject to a fine. fee, or other monetary, legal, or negative consequences”.   Although the intent of House Bill 677 isn’t completely clear (and there was little committee discussion), the  bill  could  affect local programs to reduce  motor vehicle emissions that account for as much as 70% of the ozone pollution in urban areas. For example, a Durham  ordinance  requires large employers to do certain things to reduce commuter miles traveled by employees   in an effort to  reduce motor vehicle emissions.  The question is whether House Bill 677 will take away some tools that fast-growing urban areas like Durham can now use to stay  in compliance with the ozone standard.

Night of the Living Dead: Board and Commission Reorganization

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

Coastal Resources Commission

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

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

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

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

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

Environmental Management Commission

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

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

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

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

Wildlife Resources Commission

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

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

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