Jenga: A game of skill played with a stack of wooden blocks. Each player removes a block from the stack and balances it on top, creating a taller and increasingly unstable tower as the game progresses. (Hat tip to the Wikipedia entry for a simple explanation.) As you may have guessed, the goal is to not be the player who causes the tower to collapse.
Since the 1990s, the state has adopted several very complex sets of water quality rules in response to excess nutrients in the Neuse River, the Tar-Pamlico River and the Falls Lake and Jordan Lake reservoirs. Excess nutrients in the water (such as nitrogen and phosphorus) can cause algal blooms and — particularly in hot weather — lead to large fish kills. In a reservoir, algal blooms may also affect drinking water quality and increase water treatment costs.
Section 5 of Senate Bill 612 (Regulatory Reform Act of 2013) would pull one block out of the carefully balanced tower of nutrient management rules in the Neuse River and Tar-Pamlico River basins by effectively eliminating stream buffer requirements. Stream buffer rules have been part of the Neuse River nutrient management strategy from the beginning. Every set of state nutrient rules since 1997 builds on the foundation of the Neuse strategy and all include stream buffers as a critical block. Before pulling a block out of the tower, it is worth looking back at how the tower was built.
The history of the stream buffer rules begins with development of a nutrient management strategy for the Neuse river basin in the late 1990s. In 1995, the N.C. General Assembly responded to a series of large fish kills in the Neuse River estuary and a toxic algae scare by directing the state’s Environmental Management Commission (EMC) to adopt rules to reduce nitrogen loading in the Neuse by at least 30% (Session Law 1995-572). To reach the reduction goal, the EMC allocated the reduction (in pounds of nitrogen) among the largest nitrogen sources in the river basin. The allocation was done by source category (wastewater dischargers, agricultural operations and developed areas) based on the nitrogen contribution from each type of source.
The final Neuse rules required large wastewater treatment plants to reduce the amount of nitrogen being discharged to rivers and streams; set up a nutrient trading system to allow wastewater dischargers to generate and trade credits for additional nitrogen reductions; required farmers to develop best management practices to reduce nutrient runoff from row crop agriculture and animal operations; and required maintenance of vegetated buffers along streams in the river basin. Just as tighter wastewater discharge standards and agricultural best management practices reduce nutrient loading from those sources, stream buffers reduce nutrient loading from developed areas by allowing trees and shrubs to absorb nitrogen in runoff from developed areas. The EMC then modified an earlier nutrient management strategy for the Tar-Pamlico River to add stormwater and stream buffer requirements similar to those adopted for the Neuse. By August 1, 2000, stream buffer rules were in effect in both the Neuse and the Tar-Pamlico river basins.
Section 5 of Senate Bill 612 appears to be identical to language supported by the N.C. Homebuilders Association and the N.C. Association of Realtors in 2012. The proposed exemption is very broad. It would exempt all private property from the buffer rules as long as there was a plat of the property on record with the Register of Deeds before August 1, 2000. (The language does not limit the exemption to residential lots or to lots shown on an approved subdivision plat; it appears that any type of recorded map could qualify a property for the exemption.) In 2012, concern about this same language led to compromise legislation. Session Law 2012-200 extended a stream buffer exemption that already existed in the coastal area to all waterfront lots in the Neuse and Tar-Pamlico river basins. The exemption (which applies to residential lots platted before August 1, 2000) allows development activity in the stream buffer if the lot is too small for construction of a single-family home (and onsite wastewater system if needed) entirely outside the buffer.
The risk in pulling the buffer rules out of the nutrient management strategy entirely is that the nitrogen and phosphorus reductions provided by the stream buffers would be lost. Since both rivers have been listed as having impaired water quality because of excess nutrients, the federal Clean Water Act requires the state to reduce nutrient loading to the rivers. Loss of the nutrient reductions provided by stream buffers will simply shift more of the burden (and cost) of nutrient reduction to other sources — local government wastewater treatment plants, industrial wastewater dischargers, and agricultural operations.
Not to abuse the Jenga metaphor, but the General Assembly has again been asked to pull a block from the center of the tower blindfolded — that is, without being able to see the relationship of one block to the others. The state’s nutrient management rules are not sacred and untouchable; they were not handed down on stone tablets. But in developing nutrient management strategies for the Neuse and the Tar-Pamlico river basins, state environmental programs began moving toward something like negotiated rulemaking — trying to find the right balance with all of the parties (public and private) at the table. Those other parties also need a seat at the table before a decision is made to significantly change the rules.
Senate Bill 612 raises two questions. The first: Can the state solve nutrient problems in the Neuse and Tar-Pamlico rivers without using stream buffers to reduce reduce runoff from developed areas? The second has implications well beyond the Neuse and Tar-Pamlico rivers: How will the General Assembly respond to political pressure to change a rule in a way that benefits just one of the many businesses, industries, local governments, and nonprofit organizations who compromised to solve a complicated environmental problem?
The answer to the second question will affect the state’s ability to deal with other difficult environmental issues in the future. (Competition for water supply comes to mind.)