A Return to Failed Rules?

RALEIGH – Coastal stormwater rules would be rolled back to the failed standards of almost a decade ago under a sweeping reconstituted regulatory bill that is moving quickly through the state Senate and has even business-friendly regulators alarmed.

The 54-page bill is breathtaking for its breadth. Among a long laundry list of environmental changes that Republicans says are needed to promote business, are provisions that loosen rules to protect air and water quality, set up a system of self-auditing that gives polluters legal immunity, reduce the number of wetlands under state protection, make it expensive for people and groups to challenge state actions and prevent the state from enforcing new federal rules on wood-burning stoves.

Even officials with the N.C. Department of Environment and Natural Resources are alarmed. The business-friendly agency fashioned by Gov. Pat McCrory issued a 15-page review yesterday that is notable for its tone. One proposal, the agency said , would do “severe environmental damage.” Another could could lead to the federal takeover of the state’s drinking water program. One section, the agency complained, would allow utility and sewer lines to be dug without regard for the environmental damage they might do.

DENR said it could not support the bill as written.

The proposals were added to House Bill 765, which was originally a single-page bill about gravel. It’s the latest in a long line of bills by Republicans in control of the N.C. General Assembly to weaken or kill rules that they consider unnecessary or too burdensome on business. Under the guise of “reform,” they have passed similar bills in every session of the legislature since Republicans took control in 2011.

Mary Maclean Asbill

Mary Maclean Asbill

Many of the environmental measures appeared in the last year’s version of the Senate’s regulatory bill but were rejected by the state House.

The bill has also drawn criticism from House members who opposed similar provisions the Senate proposed in last year’s bill.

Rep. Chuck McGrady, R-Henderson, who opposed last year’s provisions on air monitors and changes to isolated wetlands, said if the proposals were the same, he would do so again.

The Senate is expected to vote on the bill as early as today and send it back to the House. Environmental advocates said after that they expect to see another major battle.

Mary Maclean Asbill, an attorney with the Southern Environmental Law Center said it was telling on Monday when the bill’s sponsor, Sen. Trudy Wade, R-Guilford, noted to the committee that they had seen many of the provisions before.

“They had,” Asbill said, “and there was a reason they didn’t become law.”

Coastal Stormwater

Coastal stormwater rules would see a major change, rolling back to density requirements in place in 2008. The change would double the allowable density to 24 percent impervious surface adjacent to Outstanding Resource Waters, the state’s highest water classification, and within a half mile of shellfish waters. Higher building densities usually lead to higher volumes of stormwater flowing into adjacent waters. Stormwater is the largest source of water pollution along the coast.

“This would have a large impact on low density development projects on the coast in some of our most sensitive waters,” DENR noted in its comments. “This could lead to water quality impacts and impact the waters’ ability to support their designated usages.”

The agency noted that these same thresholds were place before the rules were tightened and had led to more closures of shellfish waters. Studies have shown that biological diversity in streams remains fair to good if impervious surfaces are kept to less than 10 percent, DENR noted. Raising impervious surface cover to just 12 percent, it said, results in poor diversity.

Reverting back to standards that were shown not to protect water quality will only lead to trouble, DENR warned. “A change of this type could lead to individual projects being challenged by outside parties that question the potential of the projects to assure that they can meet water quality standards and protect best usages,” DENR noted.

Polluters, Police Thyself

The bill would allow polluters to conduct voluntary environmental audits of their operations that would prevent DENR from taking enforcement action against an illegal activity if the companies made a “diligent” effort to correct the problems in a “reasonable” amount of time. The public wouldn’t be allowed to see the audits and neither could they be used as evidence in court proceedings.

DENR, in its comments, complained that the language was terribly vague, and that the bill would conflict with federal enforcement guidelines on issues dealing with water and air violations.

“The proposed bill could have a negative impact on facilities due to the potential for EPA oversight and overfile actions. The EPA has authority to react if the state does not respond appropriately…” DENR warned.

Isolated Wetlands

The bill takes aim at so-called “isolated” wetlands, which also came under fire in last year’s regulatory bill. These tracts of wetlands, which can be as small as a quarter of an acre, aren’t directly connected to waterways and aren’t protected by federal law. They make up about 4 percent of the state’s wetlands.

The new proposal would eliminate all but two of the 14 types of isolated wetlands that now receive some state protections. It would also allow statewide an acre of disturbance before mitigation is required. Currently, a third of an acre is the threshold for isolated wetlands west of Interstate 95.

Third-Party Lawsuits

Asbill said while the return of already rejected provisions is troubling, one new addition is even more of a concern.

That provision would force law firms, such as hers, that represent private groups that sue on environmental grounds and lose to reimburse the state’s legal fees.

Asbill said that, while the provision is aimed at firms like the law center, the bill will ultimately affect people’s right to challenge the state in a wide array of cases. A section of the provision also applies to all transportation-related projects.

Cassie Gavin, director of government relations for the N.C. chapter of the Sierra Club, said the provision is clearly aimed at stopping people from fighting projects.

“The intent and impact would be a chilling of citizen suits on environmental issues,” she said. Those types of lawsuits were important during the Titan Cement expansion and in pushing the state to address coal ash, she said.

Another section of the bill also proposed unsuccessfully last year would allow projects that require state clean air permits to move forward while the permit is under challenge by a private group or other third party.

Other Measures

The bill also calls for the elimination of air quality monitors deemed as not required by federal law, another provision that was voted down in 2014. Environmental groups say the rule could apply to more than half of the state’s roughly 130 monitors, but DENR officials estimate that only 12 monitors would fall under the requirement.

Also included in the bill are:

  • An expansion of the state’s risk remediation program;
  • Changes to liability laws and protections related to the state’s brownfields law;
  • Allowing certified engineers to approve on-site wastewater systems rather than local health departments and;
  • Exemptions for some utility projects from sedimentation requirements.
About the Author

Kirk Ross

Kirk Ross is a longtime North Carolina journalist based in the Triangle. In addition to Coastal Review Online, he covers the legislature and state government for Carolina Public Press and The Washington Post. He can be reached at kirkrossreport@gmail.com.