Tag Archives: Water Permitting

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.

House Changes to Senate Bill 10 — The Environment Commissions

On Wednesday, the House Committee on Commerce and Job Development approved a new version of Senate Bill 10 (reorganizing important state commissions) that  looks very different from  the bill approved by the Senate last week. The changes did not please  Senate bill sponsor Tom Apodaca who appeared in the House committee to present the Senate bill.  The most significant House changes affecting environment commissions:

Coastal Resources Commission

— Increased the number of CRC members from the 11 proposed by the Senate to 13;  nine members would be appointed by the Governor and  four by legislative leaders

— Restored seats representing commercial fishing, sports fishing, wildlife and agriculture.

Like the Senate Bill, the House PCS would eliminate specific seats for members with experience in forestry, finance, marine ecology and conservation.

— Restored language limiting the number of CRC members who receive income from real estate development or construction. The House bill would require that seven of thirteen seats on the CRC  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”.

— Added language requiring that all members be N.C. residents and either  reside or  own property in the coastal area

— Makes the transition in CRC membership  more gradual by allowing four current members to serve for another year.  The bill would end the terms of all  CRC members when the bill becomes law with the exception of 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

— Increases the number of EMC members to 15 (compared to 13 in Senate bill); nine members would be appointed by the Governor and six by legislative leadership.

—  Restores the  seat  for  a person  with experience  in air pollution or air pollution control.

— Adds back a seat for a  member with expertise in fisheries, marine ecology  or fish and wildlife conservation

— Restores the EMC conflict of  interest language. The House bill would require that all of the Governor’s appointees (a majority of the EMC members) must be people who  do not derive any significant portion of their income from “persons subject to permits or enforcement orders” under  the water and air quality statutes.

— Makes a more gradual transition to new appointments, taking the same approach used in the CRC appointments. The terms of all current EMC members would  end March 15, except that  four members would serve out terms  scheduled to end on June 30 2015.  Those four  EMC members now hold  seats earmarked for: agriculture; an engineer with experience in water supply  or in water or air pollution; a citizen interested in water or air pollution; and a person with expertise in air pollution or air pollution control. (As explained by legislative staff, the four EMC members hold over for two years  because of the way EMC terms are staggered.)

After a stop in the House Rules Committee on Thursday,  the bill can go to  the House floor.  From there, it will almost certainly  have to go to a conference committee to work out differences with the Senate.

Senate Bill 10 and Federal Conflict of Interest Laws

A bit more about Senate Bill 10. 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. To have  — and keep —  delegated permitting authority, North Carolina must meet those standards. North Carolina law gives the Environmental Management Commission (EMC) authority to issue federal water quality and air quality permits. Although the EMC has delegated much of its permitting authority to Department of Environment and Natural Resources (DENR) staff,  the EMC still makes decisions on major variances, declaratory rulings, civil penalty remission requests and final decisions in some administrative  appeals.

Senate Bill 10 removes language in N.C. General Statute 143B-283(c) that has allowed the EMC to meet federal conflict of interest standards. The sentence to be repealed closely tracks 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]”.   Under G.S. 143B-283(c),   at least nine Environmental Management Commission members must not “derive any significant portion of their income from persons subject to permits or enforcement orders under [the water and air quality statutes]”.  (When it was adopted, nine members represented a majority of the EMC; more about that below.) Although the Clean Water Act’s conflict of interest  language is worded differently, EPA has also accepted G.S. 143B-283(c) as meeting requirements for delegation of  water quality permitting authority.

Since the EMC expanded from 17 members to 19 members in 2001,  nine no longer represents a majority of the commission.  EPA picked up on the math problem more than a year ago and began questioning whether North Carolina’s delegated permitting programs  still met federal conflict of interest standards. The question first came up in connection with the air quality program and DENR’s Division of Air Quality has addressed the issue in recent implementation plans for federal air quality standards. DENR seems to have satisfied EPA by making sure that permit-related decisions go to EMC committees that have a “public interest” majority at the committee level.

Complete repeal of the EMC conflict of interest language would force EPA to look at the issue again  under circumstances that make inconsistency with federal standards more difficult to resolve.  The EMC appointment criteria in Senate Bill 10 no longer assure that even EMC committees could have a “public interest” majority.

 

Senate Bill 10: The Environment Commissions

The North Carolina  Senate is considering a bill that would significantly change appointments to several influential state boards and commissions. This post focuses on two commissions affected by Senate Bill 10 — the Coastal Resources Commission (CRC) and the Environmental Management Commission (EMC). (This analysis is based on Edition 3 of the bill.)

The bill  immediately  gives the new governor and legislative leadership complete control over  the membership of these commissions by causing the terms of current members to end as soon as the bill becomes law — even though months or years may remain on each member’s statutory  term of office.   Senate Bill 10 also amends the appointment statutes for  the CRC and the EMC to reduce the total number of commission members;  increase the number  appointed by legislative leadership (reducing the governor’s influence);  and change appointment criteria. More detail on changes proposed for each commission below.

The Coastal Resources Commission (CRC) has  authority to adopt rules for development in environmentally sensitive areas of the twenty coastal counties.  Changes proposed in Senate Bill 10 would reduce the number of CRC members from 15 to 11 and for the first time divide appointments among the Governor, President pro tem of the Senate and Speaker of  the House. (Currently all CRC members are appointed by the Governor.)  The bill also changes the criteria for appointing CRC members by:

• Increasing the number of “at-large” members ( who do not have to meet specific appointment criteria).

• Eliminating seats  now earmarked for members with knowledge or experience in coastal fisheries, agriculture, forestry, marine ecology, conservation, and finance.

• Removing the requirement that a super-majority of commission members (13 of the current 15 members) must live in one of the coastal counties.  Under Senate Bill 10, none of the CRC members would have to actually  live in  a coastal county.

• Designating the six seats that have specific appointment criteria for one representative of a coastal business; two representatives of coastal land owners or developers; one  member with experience in a coastal local government; and two members with a background in either coastal engineering or coastal science.

The new appointment criteria raise several concerns. The Coastal Resources Commission regulates development in the twenty coastal counties, but Senate Bill 10 would no longer  guarantee representation of coastal residents on the commission.  The commission would lose scientific expertise, but even more important it would lose the (nonpartisan) political breadth needed to create consensus on controversial coastal policies.   Under the new appointment criteria, it would be possible to have a CRC composed entirely of members representing  business and development interests, leaving participants in other parts of the coastal economy (such as fisheries, forestry, and agriculture) without  influence on major coastal policy decisions.

The bill also changes the membership of the Coastal Resources Advisory Council, a non-regulatory body  created to advise the Coastal Resources Commission.  Most  members of the Advisory Council represent local governments; each coastal county has a representative selected by the county commissioners and other members represent coastal cities or multi-county planning districts.  Senate Bill 10  reduces the total number of Advisory Council members from 45 to 20 and does not set aside any seats for local government representatives.  The change could  leave coastal  local governments with much less influence over coastal policy.

The Environmental Management Commission has responsibility for adopting state air quality, water quality, and water resource standards. Senate Bill 10 reduces the total number of EMC members from 19 to 13. The governor and legislative leaders already share authority to appoint EMC members, but Senate Bill 10 would lessen the governor’s influence on the EMC relative to the General Assembly by reducing the number of governor’s appointees to seven. Legislative leaders would continue to appoint six members,  representing nearly half of the smaller EMC.

The bill  makes significant changes in appointment criteria for EMC members by eliminating seats now earmarked for members with experience in public health, fish and wildlife conservation, groundwater hydrology, local government, and air pollution.  The new criteria proposed for governors appointments would:

• Retain a seat on the EMC for a physician, but no longer require the physician member to have “specialized training and experience in the health effects of environmental pollution”.

• Require the governor to choose between having  members with experience in hydrology,   water pollution control or the effects of water pollution.

• Require the governor to choose between having a  member with expertise in ecology or a member with expertise in air pollution.

• Reduce the three seats on the EMC for members of the public at large who have “an interest in water and air pollution control” to  one at-large member (without the qualifying language).

The  proposed changes in appointment criteria could  result in a commission without  expertise  in critical areas.  In several instances, the governor will be required  to decide which of several areas of environmental expertise to exclude in making appointments.  For example, choices forced by the new  criteria could leave  the  EMC   without  expertise  in air pollution or air pollution control – one of the most complicated and technically demanding subjects that the EMC has to address.   Knowledge of hydrology, water quality,  ecology and air pollution can be found on the DENR staff, but the EMC would lose the independent perspective provided by commissioners with expertise in each of those areas.

By changing EMC appointments, Senate Bill 10 will also indirectly affect the makeup of other environmental commissions that have seats designated for a member of the EMC. Those include the Mining and Energy Commission and the Sedimentation Pollution Control Commission.

Finally, Senate Bill 10 repeals language requiring that at least nine EMC members must be people who do not derive significant income from  activities regulated by the commission.  The language in G.S. 143B-283(c) exists  in part to meet federal requirements for  delegated permitting programs  under the  Clean Water Act and Clean Air Act.   Complete repeal of the language may cause EPA to question  North Carolina compliance  with federal rules governing those  delegated  programs. More detail about this issue later.