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League Bulletin

January 13, 2015

NCLM News & Political Report

州议员明天正式开始新的立法会议, although they will devote their time and energies almost exclusively to selecting chamber leaders that day and then organizing further during a two-week break before the business of policymaking begins in earnest. Some key legislators and legislative insiders are predicting the pace of legislation may not be as fast as in the previous few years.

The budget, transportation funding, 经济发展和医疗补助改革可能是议员们的首要任务. The League's Governmental Affairs team will be focused on advocating for replacement revenue for the business privilege license tax, 恢复历史文物保护税收抵免, competitive economic development tools, 有利于州和市政当局的交通资金, and the many other Municipal Advocacy Goals approved by League members.

As for environmental issues, legislative headlines will likely continue to be dominated by coal ash and hydraulic fracturing, but there has been recent indications that lawmakers may introduce more nutrient legislation. Last week, Rep. Larry Yarborough, a Person County freshman member, gave an interview in which he stated that his primary goal this session was to delay or reduce the impact of the Falls Lake watershed nutrient management rules. In addition, N.C. 水资源部主任汤姆·里德在上周的联合国大会上说.C. Environmental Management Commission meeting that he has been led to believe  the legislature will give direction regarding nutrient strategies for lakes. Reinforcing those statements, League staff has heard rumors for months that there may be legislative interest to consider a nutrient proposal.

On the regulatory front, the N.C. 2015年，环境与自然资源部(DENR)迎来了一位新领导. At the end of 2014, Governor Pat McCrory announced his decision to appoint Don van der Vaart as Secretary of DENR, replacing former DENR Sec. 约翰·斯克瓦拉，他已转任商务部长. Sec. van der Vaart comes from within DENR and his experience should be an advantage as DENR continues through the expansive periodic review of rules process mandated by HB 74 Regulatory Reform Act of 2013. 与水有关的2B、2H、2T和2U规则已经通过 rule review process, DENR plans an extensive stakeholder process to assist in preparing any changes to the rules prior to readoption. 365足彩下载已经对这一进程提供了初步投入, and the larger stakeholder process will likely begin in February and extend through the summer.

In addition, as 2014 came to a close, the U.S. Environmental Protection Agency (EPA) notified DENR of 它对北卡罗来纳州2014年受损水域名单的最终决定 -- known as the 303(d) list. With that final determination, EPA maintained its original decision to add 51 additional water body-pollutant combinations to the state's list, despite League and state regulators' opposition. DENR should soon announce its methodology to determine which waters will be placed on the state's 2016 impaired waters list; the Department had previously delayed its decision regarding the state's 2016 listing methodology, 声明将等待环保局做出最终决定后的30天.

Proposed Rule to Ease Buffer Mitigation

The N.C. Environmental Management Commission (EMC) voted Thursday to send its proposed consolidated buffer mitigation rule out for public comment. 365足彩下载支持这些变化，以缓冲缓解(和 previous rulemaking attempts) because they would ease the ability of cities and developers to compensate for disturbances made to buffer zones along bodies of water. In addition, the changes should result in more mitigation projects taking place in both urban and rural areas.

At Thursday's meeting, the N.C. Division of Water Resources (DWR) staff presented to the EMC the many benefits of the proposed rule, a reworking of a temporary rule now in effect. 工作人员列举了该提议的以下好处:它更容易理解, provided for consistency across basin/watersheds, increased flexibility for compliance, 并增加了缓冲缓解的地点和选择. In addition, in a move important to cities and developers that seek to undertake mitigation in areas set back from waterways that also contain sewer easements, 这个最新的提议消除了30英尺下水道地役权最小宽度的需要.

Buffer Mitigation History

Buffer mitigation is a state program that generally requires protection of nearby waters when activities affect a stream on or adjacent to a development site. However, previous program requirements were often too strict to allow buffer mitigation in urbanized areas. For example, one former program element required a tract with a minimum of 50-foot buffers on either side of a stream. 在城市地区，寻找如此广阔的不间断土地带来了巨大的挑战.

The League and other stakeholders worked for many years with state regulators on this set of rules, which was prompted by a 1999 law 指示国家扩大缓冲缓解办法. That effort culminated in language that allowed more mitigation in urban areas, among other measures. However, the rule approved by the EMC in 2013 received 10 letters of objection触发了立法审查的要求，并搁置了规则制定.

Proposed Rule

This current rulemaking was mandated in SL 2014-95, a law that redirected the 15-year agency effort to update the State's buffer mitigation rules. It did so by requiring state regulators to adopt temporary rules “substantively identical” to those contained in the 2014年4月10日合并缓冲缓解规则利益相关者报告, which was prepared in 2014 by private mitigation banking interests and state agency staff.

拟议的永久性规则的案文与《365足彩下载》非常相似 temporary rule that became effective October 24, 但包括重组和改变，以提高清晰度和一致性. In addition, the language was broadened to include means of financial assurance beyond just a completion bond.

Public notice of the rule will begin January 26, with public comments accepted until April 17. 阅读之前关于365足彩下载参与这些缓冲规则的报道EMC批准有助于城市地区缓冲缓解的规则," June 2013 EcoLINC.

EMC与包括在规则许可要求角力

In a discussion regarding relatively non-controversial stormwater permitting rules for the oil and gas extraction industry, the N.C. Environmental Management Commission (EMC) struggled last week with broader issues related to including actual permit terms in rules, specifically wrestling with the need for predictability in permits balanced against the ease of implementation for regulated parties. This discussion arose because the N.C. Rule Review Commission (RRC) 反对环境管理委员会通过的一项雨水石油和天然气规则 grounds that a portion of the EMC-approved rule differed substantially from the rule language that was taken to public notice. The N.C. Administrative Procedures Act requires rulemaking agencies to re-notice and conduct further public hearings when making "substantial" changes to rules after the initial public comment period.

The rule at issue originally gave staff of the N.C. 环境与自然资源部(DENR) the ability to establish record-keeping, self-inspection, 以及与雨水有关的自我报告许可要求. However, as a result of feedback received through the comment period, the EMC adopted a rule 取而代之的是具体的许可证要求, eliminating some agency staff discretion by placing the permit terms in the rules themselves. Because the RRC objected to the rule as a "substantial" change from the originally-noticed language, EMC可以选择以两种方式之一来解决反对意见, either:

  • providing public notice of the more specific rule language it adopted at its November meeting and receiving public comments on this updated language for a further 60 days, or
  • modifying the previously-adopted rule to remove the added language and go back to the language it originally provided for public notice.

Permit Conditions from Staff or in Rules?

EMC Chair Benne Hutson noted that the issue of how to proceed with this specific rule raised the larger question of whether the EMC wanted all permit terms written into regulations, or if instead the EMC preferred to give DENR staff the discretion to set specific permit terms on a more ad hoc basis. In the discussion, various commissioners noted that while there was a benefit to having a standard that may be modified based on a situation's specifics, they recognized that most of the regulated community preferred a predictable outcome from regulation, 这就需要知道许可证上应该写些什么.

Commissioners also recognized the potential for their decision to set a precedent for future rulemakings and asked division directors present at the meeting for input. N.C. Division of Water Resources Director Tom Reeder noted that it would be impossible to put all permit requirements into rules, while N.C. Division of Waste Management Director Linda Culpepper said clarity and consistency needed to be balanced with flexibility. Commissioner Steve Tedder, a former state water quality regulator, commented that the subject matter of some rules may require more specificity that was tailored to individual permitees' circumstances. Further, he said that while the oil and gas extraction industry may desire more predictability through permit terms being included in rules, if the EMC followed that course of action, 这并不一定会成为未来其他规则制定的先例.

EMC在结束讨论时决定采用《 original rule language that did not include specific permit requirements, which avoided a re-notification of the rule.

Ozone Standards Affect Transportation Funding

The U.S. Environmental Protection Agency (EPA) announced its revisions to the national ambient air quality standards (NAAQS) for ozone in November and proposed changes were published in the Federal Register December 17. These changes were of particular interest to League members because if an area exceeds air quality limits--and is consequently designated as being in "nonattainment"--then the federal air law can reduce federal transportation funding for local governments.

NAAQS Background

The Clean Air Act (CAA) requires EPA to set NAAQS for ozone (the main component in urban smog) and five other pollutants considered harmful to public health and the environment. In addition, it requires EPA to periodically review the standards to ensure that they provide adequate health and environmental protection. 联邦法律还要求环保局在必要时更新这些标准, a process which led to the latest proposed changes. The NAAQS are used to determine what areas are in nonattainment这意味着它们不符合联邦臭氧空气质量标准. Then, EPA sets nonattainment boundaries based on recommendations from the states. The designation can have important implications for growth and development because it gives EPA the authority to review proposed highway projects and long-range transportation plans.

Effect on Transportation Funding

如前所述，达到NAAQS会影响运输资金. 同时要求所有地区达到空气质素标准, the CAA also contains a transportation conformity requirement for these areas. With this second requirement, the CAA promotes a goal of ensuring that federal funding and project approval decisions go to transportation activities that are consistent with the law's air quality goals. The conformity process applies to metropolitan transportation plans, transportation improvement programs (TIPs), and projects funded or approved by the Federal Highway Administration (FHWA) or the Federal Transit Administration (FTA) in areas that do not meet or previously have not met air quality standards for ozone or the five other pollutants.

As required by the CAA, the N.C. Division of Air Quality (DAQ) develops a State Implementation Plan (SIP), which describes how North Carolina will keep the air clean enough so that the state does not violate the NAAQS. In the SIP, the State estimates emissions from factories, power plants, dry cleaners, bakeries, construction equipment, lawn equipment, biogenics, vehicles and other sources. 确保来源不违反标准, the law limits how much certain sources can pollute. 如果一个地区的排放超过了SIP规定的限制, 然后根据运输符合性要求, 联邦资金不能用于资助该地区的交通项目. In North Carolina, the State and municipalities share responsibilities for building and maintaining transportation infrastructure such as roads and bridges.

Ozone Standard: Current and Proposed

NAAQS include both primary and secondary standards. 初级标准规定了保护公众健康的限度, including the health of at-risk populations such as people with pre-existing heart or lung disease, children, and older adults. 二级标准设定了保护公共福利的限制, including protection against visibility impairment, damage to animals, crops, vegetation, and buildings.

In the recently-noticed standard, EPA proposed creating tougher limits by reducing both the primary and secondary standard within a range of 65-70 parts per billion (ppb) over an 8-hour average. The current standard is 75 ppb. 

EPA last updated ozone standards in 2008, 将8小时测量的允许水平从80 PPB降低到75 PPB. North Carolina created air quality plans for controlling ozone in nonattainment areas and achieved the desired result; DAQ staff indicated that the whole state is currently in attainment based on the 2008 standard of 75 ppb and 2012-2014 data.

However, some North Carolina counties' current ozone levels (indicated in the map below) could exceed EPA's proposed standard, 取决于标准在建议范围内的位置. For example, if EPA chose to set the ozone standard at 65 ppb, 该州的许多地区将被拖入不达标的境地. However, only Mecklenburg County would be considered in nonattainment if the new standard was set at 70 ppb. 环保署最早要到10月份才会公布实际的标准. 

EPA projects that the vast majority of U.S. counties will meet the proposed standards by 2025 with rules and programs that are currently in place or under way. EPA will make attainment or nonattainment designations for any revised standards by October 2017. 这些指定将基于2014-2016年的空气质量数据, which DAQ staff indicated bodes well for North Carolina because the state's ozone levels will continually improve with the passage of time.

The 90-day comment period ends March 17, 2015, and EPA projects that the final standards will be signed by October 1. 

Regulatory Briefs

In early January, DWR gave public notice of a proposed surface water reclassification 将恐惧角河的一部分从SC级改为SC级Sw沼泽(Sw), with the comment period ending March 3...上周就Cary-Apex的要求举行了公开听证会 interbasin transfer certificate modification, which requests authorization to transfer up to 33 million gallons of water per day from the Haw River basin to the Neuse River basin and the Cape Fear River basin, an amount which was consistent with the Jordan Lake Partnership’s 2014 “Triangle Regional Water Supply Plan,解决该地区到2060年的供水需求...After a presentation regarding the allocation of water in Jordan Lake, the EMC Water Allocation committee requested that DWR staff bring a list of impediments to other water supply alternatives to its March meeting...The full EMC adopted an interim report on the beneficial reuse of coal ash 并指示工作人员按照2014年立法的要求将其发送给伦理委员会...在试图确定地下水污染的程度在该州的32 coal ash ponds, DWR invited residents with water supply wells near Duke Energy’s facilities to participate in a program to have their wells tested...Additionally, EPA proposed new rules regarding how power companies must dispose of coal ash, proposing technical requirements for landfills and surface impoundments under Subtitle D of the RCRA...A federal district judge rejected environmentalists' request to immediately seek a ruling in state court in a case aiming to block North Carolina from issuing novel Clean Water Act (CWA) permits for air emissions of feather and farm dust允许玫瑰亩农场向联邦法院提起诉讼...EPA extended the deadline for public comment on its proposed rule to require dental offices to remove 99 percent of dental amalgam 从12月22日至2月20日的污水排放...此外，环保署还发布了最终规定，要求各州 water quality standards to the White House OMB for prepublication review, 其中包括与抗降解相关的需求, variance procedures, designated uses, 以及环保署在确定一个州的规定是否不足时可以采取的行动...Recently, environmentalists sued EPA for approving Florida's water quality standards to prevent degradation, arguing that baseline data of water quality conditions must be collected in order for EPA to rationally consider the state's actions...作为参议院环境和公共工程委员会的主席，奥巴马.S. 参议员詹姆斯·英霍夫表示，他希望阻止环保局的规定，包括 CWA jurisdictional rule, through votes under the Congressional Review Act.

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