Monthly Archives: July 2018

2018 Environmental Legislation Part 2: Environmental Bills

July 28, 2018.  In addition to the environmental policy changes in the budget, several  bills amended environmental laws. Among the more significant changes:

Stormwater. Sec. 14 of House Bill 374  (2018 Regulatory Reform Act) directs the Environmental Management Commission  to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.

When a water body chronically violates a water quality standard, the  Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the  water quality violation –  a “total maximum daily load”. The TMDL caps  total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit  for the pollutant;  the sum of all the permitted discharges  cannot exceed the cap.  In areas like the Jordan Lake watershed,  stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution  by also reducing the release of nutrients in runoff.  The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL  through a federal stormwater discharge permit.

The provision is the most recent  in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the  bill specifically targets  local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local  enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed  requirements in state law since the state develops the TMDLs and issues the NPDES  permits.

Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development  near sensitive coastal waters to  control stormwater  to reduce pollutant runoff.  The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s  stormwater permit for construction of the subdivision.  Once the subdivision has been significantly built out,  the developer typically transfers ownership and control over all common areas — including the stormwater system —  to a homeowners’ association.  To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action.  But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.

The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a  subdivision with excess impervious surface  will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of  non-compliance at the time responsibility for the system transferred from the developer to the HOA.

The provision may have unintended consequences. First,  it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before  January 1, 2017 to be in compliance with the stormwater rules.

Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711.  The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.

Environmental Legislation 2018: Part 1 – The Budget

July 9, 2018. An overview of 2018 state budget provisions affecting the environment:

♦ The budget provides funds to monitor water bodies for GenX and other per- and poly-fluoroalkyl  substances (PFAS). The budget bill also gives the Governor a new authority to stop releases of  PFAS albeit one not very practical to use.  See an earlier post for a detailed description of the GenX budget provisions.

♦ The budget directs up to $2 million to Speedway Motor Sports for environmental remediation at Charlotte Motor Speedway. The state funding will need to  be matched 2:1 by funding from other sources.   Half of the revenue from N.C.’s solid waste disposal tax goes to assess and cleanup contamination associated with landfills that pre-dated 1983 environmental standards for waste disposal; one of these “pre-regulatory” landfills is located in the infield of  Charlotte Motor Speedway.  The law governing the remediation program requires DEQ  to prioritize work on the old landfill sites based on risk to human health and the environment and it isn’t clear how the Charlotte Motor Speedway  ranks under the priority factors.  The budget provision may be intended to accelerate  (sorry!) remediation of the Speedway landfill  by immediately providing state funding, but conditioned on Speedway Motor Sports providing matching funds which  is not normally required under the remediation program. 

♦ The 2018 budget continues the legislature’s recent practice of bypassing the infrastructure  grant program in DEQ to direct water and sewer funds to specific projects.  In the normal grant process, DEQ and the State Water Infrastructure Authority allocate infrastructure funds under priority criteria that take into consideration a number of environmental, public health and financial factors. The budget bill diverts $2.5 million from the competitive  grant program  to projects in the towns of Richlands, Mount Airy,  Bath and Trenton. The amount per project varies from $201,000 to over $1 million.

♦ The budget directs $5 million dollars to Resource Institute, Inc. “to explore opportunities for the development and implementation of emerging techniques that can extend the useful life of beach nourishment projects”. Resource Institute, Inc., a Winston-Salem based non-profit, describes its mission as “[enhancement of] America’s natural resources by restoring streams, rivers and wetlands”. information  on the Resource Institute’s website indicate the nonprofit  largely assists in connecting restoration project sponsors with potential funding sources and planning assistance; the Institute does not appear to directly work on design and construction of restoration projects. 

♦ The  budget bill revisits a 2017  budget provision controlling use of funds from the U.S. Environmental Protection Agency’s  (EPA) settlement of a Clean Air Act enforcement case against  Volkswagen (VW). Under the consent agreement, N.C. could receive over $90 million for air quality projects.  The  2017 state  budget required legislative committee review of DEQ’s proposed plan for use of the money and legislative appropriation of the funds to DEQ through  the state budget process.  (As a practical matter,  that means the legislature would have to act before DEQ could spend any funds designated for North Carolina by the national VW settlement trustee.) The 2018 budget bill adds more detail by directing the State Treasurer to hold the VW funds in a special account until  appropriated by the legislature.  The 2018 provision also adds a new sentence prohibiting  DEQ from releasing  any funds to a third party until the legislature has appropriated the money.  It isn’t clear whether the new sentence requires an individual appropriation for each project (and recipient) under the plan or was simply intended to restate the general requirement for  a lump sum appropriation to DEQ through the state budget process. The difference could be significant since the national VW  settlement trustee must be  assured that DEQ has authority under state law to use the VW settlement funds for the purposes described in the state plan. Some environmental organizations have expressed concern that the provision may undermine N.C.’s eligibility  to receive  VW settlement funds if it is interpreted to mean the legislature could refuse funding to an intended recipient, undermining DEQ’s legal authority to carry out the plan.

♦ The General Assembly again delayed implementation of nutrient reduction rules in the  Falls Lake and Jordan Lake watersheds; both lakes have impaired water quality due to excess nitrogen and phosphorus from wastewater discharges and runoff.   The legislature has repeatedly postponed full enforcement of nutrient reduction rules adopted by the Environmental Management Commission in  2009 (Jordan Lake) and 2011 (Falls Lake). The 2018 budget provision adds at least another year to previous delays in implementation of the Jordan Lake rules; the suspended rules would remain in limbo until completion of a new rulemaking effort that may not begin until 2020.  The provision extends the timeline for beginning work on new Falls Lake rules until 2024 and suspends enforcement of the later stages of the existing Falls Lake rules during that time.  A number of previous posts  —  going back to 2013 —  provide some history of legislative intervention in the regulation of nutrient discharges to the two reservoirs.

♦ Under the disaster relief section of the budget, the legislature provides $3.6 million to restart a program to map landslide hazard areas in western N.C.  The legislature had defunded the landslide mapping program several years ago. (See an earlier post for background on the political death of the landslide mapping program.)