Lawmakers engaged in a flurry of activity in the last weeks of September as the legislative session came to end, including the passage of laws containing environmental provisions of interest to cities and towns. This article details environmental related legislation that passed since the September 2015 edition of EcoLINC.
Regulatory Reform
In the final days of the legislative session, the House and Senate reached a compromise and passed its omnibus regulatory reform package, HB 765/S.L. 2015-286 Regulatory Reform Act of 2015. The final version of the bill incorporated changes that the League sought, converting to studies earlier provisions that would have foisted costs for electronics recycling onto municipal taxpayers and would have restricted municipalities in their choices for water, sewer and stormwater piping materials (read previous coverage about these provisions here).
However, several sections of the final version of HB 765 sought to overhaul the state's various stormwater programs to the possible detriment of municipal stormwater programs. The section aimed at amending stormwater regulations (1) disallowed a local stormwater management program (approved under N.C. Gen. Stat. § 143-214.7) from exceeding the "model program" adopted by the N.C. Environmental Management Commission (EMC), and (2) listed restrictions regarding what must apply in the implementation of those stormwater programs. But its drafting resulted in many questions that the N.C. Department of Environmental Quality (DEQ) is left to resolve, including
- What is the scope of the stormwater programs the EMC approves under N.C. Gen. Stat. § 143-214.7(d)?
- What constitutes the "model program" that is adopted by the EMC that a stormwater program cannot exceed?
League members with stormwater programs are concerned about this provision and are interested in how it will be interpreted because local programs need flexibility to shape stormwater regulations in ways that makes sense based on local conditions and in order to comply with federally-required mandates.
DEQ also stated concerns about this provision in a memo that it sent to legislators in July, specifically requesting its removal and stating that "allowing local governments to exceed minimum state standards affords them the flexibility to align their stormwater requirements with their other ordinances, thereby streamlining the local permitting process." These comments resulted in the Senate removing the provision from the original version of HB 765 it passed in July (read more here). But unfortunately, the language reappeared in the final version of the bill approved by both chambers. Since the passage of HB 765, DEQ cheered passage of the whole regulatory reform package, stating that the final law included all its recommendations. Additionally, DEQ Assistant Secretary Tom Reeder recently released a video of support.
The final bill addressed other reforms that affect cities and towns, including amending the definition of “prospective developer” in brownfields redevelopment laws; extending a sunset date on an existing exclusion from stormwater laws for cluster mailboxes; requiring a study of the state's overall stormwater regulatory scheme; and requiring the study of whether activities related to the construction, maintenance, and removal of linear utility projects should be exempted from certain environmental regulations.
Local Government Regulatory Reform
In addition to the regulatory reform package directed at state regulations, this session saw an omnibus reform package aimed directly at local governments. HB 44/S.L. 2015-246 Local Government Regulatory Reform 2015 was the final vehicle for these local reform measures and its final version passed in the last weeks of session, representing a compromise that the House and Senate worked many months to reach. Below are some of the provisions of interest to cities and towns.
Riparian Buffer Reform. The measure of most concern to cities and towns throughout each version of this bill was one addressing riparian buffer reforms that would have either restricted the ability of local governments to deviate from state riparian buffer rules or affected the applicability of the state's riparian buffer rules. To the relief of many cities and towns, the final version of the HB 44 allowed for local governments to require buffers to comply with and implement other state and federal requirements, but unfortunately still includes limitations on their buffer authority. These limitations include, among other things, preventing a local government from enacting, implementing, or enforcing an ordinance that establishes a buffer requirement that exceeds what is necessary to comply with those state and federal requirements, unless the Environmental Management Commission finds that the buffer is necessary for the protection of water quality. The N.C. Division of Water Resources (DWR) held an informational meeting last week for local governments that currently implement a state riparian buffer program. The presentation from that meeting can be found here.
Construction Notice. Additionally, HB 44 included a provision requiring local governments to notify property owners and adjacent property owners prior to the commencement of any construction project. A beneficial exception was added to the final version of the bill to allow for notice of a project to be given in any open meeting of the city or county. In addition, at the request of the League, HB 765 included a technical correction to limit the notice requirement only to new projects, not maintenance and repairs of existing facilities such as water lines and roads.
Public Water Supply Connections. Unfortunately, when the House and Senate released their final agreed-upon version of the bill, it included measures not previously seen in any version HB 44 or any other bill, including a provision related to a public water supplier’s ability to mandate connection to its system, a common practice that this new law now restricts. Specifically, the final version not only allowed for permits for wells for irrigation and non-potable water uses within service areas of a public water system, but also allowed for permits of drinking water wells if (1) the well is to serve any undeveloped or unimproved property, or (2) the public water system cannot provide water service to the property. The new provisions then prevented the public water supplier from later requiring that an owner of the drinking water well (permitted for one of the reasons above) connect to the public system. Although exceptions were given for when the public water supplier could mandate connection, the provision imposes a possible risk to the public water system's financial stability and impediment to its capital needs.
Delayed Rules. Another change in the final bill that had not been seen before included a provision that prohibits local governments from requiring compliance with regulations and rules for which the legislature delayed the effective date. Since the final budget package extended the Jordan Lake in-lake water quality monitoring and delayed the implementation of the Jordan Lake Rules for an additional three years, it seems like this provision may have been aimed at the local governments that enacted ordinances in preparation for compliance with the Jordan Lake Rules.
Preemption of Regulation of Hydraulic Fracturing
Provisions aimed at limiting local governments' ability to regulate oil and gas development activities were added to the final versions of two separate bills at the end of the this year's legislative session, allowing the measures to slip by without much attention. Both provisions appear to be a response to efforts by a handful of county governments to slow or delay hydraulic fracturing through the use of moratoria on those activities.
The Energy Modernization Act, passed in 2014, banned local ordinances that prohibited or had the effect of prohibiting hydraulic fracturing. Recently, a few North Carolina counties adopted ordinances imposing moratoria on approvals for oil and gas development, arguing that they were not prohibiting the activity but instead were giving the county time to develop a permit process for such operations. However, this year's technical corrections bill -- SB 119/S.L. 2015-264 GSC Technical Corrections 2015 (Sec. 56.2) -- sought to put an end to these efforts by changing the statutory language to instead invalidate local ordinances that regulate or have the effect of regulating oil and gas development. Legislators added these provisions to the bill as the last measure voted on before the legislature adjourned, which occurred in the middle of the night with no opportunity for public input or review.
Additionally, a provision related to special use permits added to the conference report for HB 765 Regulatory Reform Act of 2015 was aimed at local governments trying to limit hydraulic fracturing.
Bond Package to Support Local Infrastructure
Negotiations between the Governor's Office and legislators regarding the state's bond package also concluded in the final days of session. What emerged was HB 943/S.L. 2015-280 Connect NC Bond Act of 2015 -- a $2 billion bond package focused primarily on state infrastructure projects that will go before voters in the state’s upcoming March primary. The proposal included more than $300 million for grants and low-cost loans for local water and sewer projects. The legislation should achieve a key League priority of additional infrastructure investments that will benefit municipalities.
