State lawmakers took the first steps Wednesday toward diluting new stormwater rules that had prompted protests from leaders of 20 coastal counties. Advocates for the counties had said the rules would be “devastating” for coastal communities.
The Senate voted 48-0 to approve Senate Bill 1967, a measure to “improve coastal stormwater management.” The vote followed a four-minute presentation and no debate.
Supporters acknowledged that the bill represented a compromise. It generated little enthusiasm among people interested in coastal stormwater issues.
“I wish I could tell you that everybody loves what they’ve come up with. They do not,” said Sen. Dan Clodfelter, D-Mecklenburg. “It is one of the more unloved bills that you’ll probably see this session; but by the same token it’s a bill that … most of the folks who were participating in the working process at least think they can live with.”
Clodfelter’s comments on the Senate floor echoed discussion of the bill Tuesday in the Senate’s Agriculture, Environment, and Natural Resources Committee.
“I wish I could tell you that everybody supported and was in favor of this compromise,” said George Givens, the lawyer who leads the General Assembly’s staff work on environmental legislation. “Actually, the opposite is true. There’s hardly anybody that likes it entirely in every direction. It’s the best I have to offer.”
The current version of S.B. 1967 follows a negotiation process that involved more than 30 hours of public meetings since April. “I do respect and think the General Assembly needs to take account of the hard work that’s been done to get to a point where at least if no one is entirely happy, at least no one is entirely unhappy with where we’ve ended up,” Clodfelter said during the committee meeting Tuesday. “I think … that the [bill] does move substantially in the direction of some of the concerns raised by those who had objections to the rules.”
Objections first surfaced when the N.C. Environmental Management Commission voted earlier this year to add new requirements to the state Coastal Stormwater Rule. The nearly 20-year-old rule is designed to limit pollution linked to stormwater runoff in North Carolina’s 20 coastal counties.
In 2005, staff with the N.C. Division of Water Quality “concluded that the existing Coastal Stormwater Rule was outdated and ineffective in providing an adequate level of environmental protection to the coastal ecosystem,” according to a legislative staff summary of the bill.
The state water quality staffers determined that stormwater runoff caused 90 percent of shellfish water closures. They recommended updated rules to protect coastal waters. The Environmental Management Commission adopted new rules in January, and the state’s Rules Review Commission signed off on the proposed rules in March.
‘Disapproving’ the rules
Without legislative action, the new Environmental Management Commission rules would take effect when the legislature adjourns. The bill was designed to short-circuit that process. Sen. Julia Boseman, D-New Hanover, filed the original bill, and 23 colleagues from both parties signed on to the measure. In its original form, it would have simply overturned or “disapproved” the EMC rule.
While the Assembly still could decide to overturn the rule, the latest version of the bill combines input from regulators, local government leaders, developers, economic development officials, and environmental interests working through a Coastal Stormwater Rules Working Group.
The Environmental Management Commission’s proposed rule would have reduced the amount of new development on land within a half-mile of the drainage area for shellfish waters. Current rules limit the “impervious,” or hardened, surfaces in those areas to 25 percent of the affected property. The proposed rule would cut that percentage to 12 percent. Outside that half-mile, permitted impervious surfaces would drop from 30 percent to 24 percent.
New development would also face new restrictions through a larger “vegetative setback” requirement, a smaller threshold for development that triggers stormwater management, and new limits on the use of wetlands in calculating permitted development.
The latest version of the bill, known as a proposed committee substitute, would remove or dilute some of those requirements. No one attending committee meeting Tuesday praised the legislation, but representatives of several counties shared their grudging acceptance of the compromise.
“We opposed unanimously that original rule,” said Beaufort County Manager Paul Spruill, who said he was speaking on behalf of 12 northeastern coastal counties. “We, like many advocacy groups in the 12 counties, aren’t entirely happy with the proposed committee substitute. But as late as 10 o’clock last night for some of us, our elected bodies numbering 10 out of our 12 [counties] adopted resolutions of support for the proposed committee substitute. Those resolutions of support are conditional on the expectation that no amendments or other committee substitutes impact this bill in the form that it is now.”
Spruill expects the other two counties to adopt similar resolutions this month. “That’ll make us 12 for 12 on resolutions of support with what we view as a workable stormwater rule that will take the place of what we previously viewed as an entirely unworkable stormwater rule.”
A lobbyist working for the same 12 counties — Beaufort, Bertie, Camden, Chowan, Currituck, Gates, Hertford, Hyde, Pasquotank, Perquimans, Tyrrell, and Washington — offered a similar endorsement.
“We knew that the original rules would be devastating,” said Henri McClees, a registered lobbyist who is also executive director of the Fisheries Development Foundation of N.C. “We are in support of this proposed committee substitute because substantial changes have been made. There’s a lot we don’t like. However, we do appreciate this opportunity to come before you and ask you to support this proposed committee substitute with no further changes.”
Pamlico County’s planning and economic development officer added her county commissioners’ endorsement. “We still have some questions and things, but we do vote unanimously for support of the bill as it’s written now,” Jayne Robb told senators before their committee vote.
“Carteret County is the most severely impacted by this piece of legislation,” Sen. Jean Preston, R-Carteret, told her colleagues. “Several of our folks back home have been up here. They’ve been involved in the stakeholder meetings. As late as last night, our county manager, who is a very forceful speaker on this, does not like a lot that’s in it, but he feels at this point in time that it’s better than it was and that we would be supporting it.”
Some opponents of coastal stormwater rules are still unhappy with the compromise. “On behalf of the thousands of landowners in the 20 coastal counties of North Carolina, I want to commend you on your loyalty to the powers-that-be and for having the courage to totally ignore the wishes of the public taxpayers who pay your salary and who will be paying your retirement,” Zack Taylor wrote to Givens in an e-mail Wednesday morning.
Taylor is a New Bern developer and publisher who opposes coastal stormwater rules. “Your dedication to ‘political science’ rather than trivial matters such as ‘truth and justice’ leaves a stench that smells far beyond the halls of power in Raleigh.”
“If I had known that the stakeholders meeting was another ‘sham’ to give the public and our representatives the impression that everyone was equally represented at the table, I would not have wasted my time and energy to attend,” Taylor’s e-mail said. “Hopefully someday people like you and your partners-in-subversion will be replaced by persons of character that will take their fiduciary duties seriously, and some integrity will be restored to the political system.”
Changing the EMC’s role?
Debate over stormwater rules could trigger a long-term change in the relationship between the Assembly and the Environmental Management Commission, if committee discussion Tuesday offers any clues.
“The Administrative Procedure Act was amended in the mid-’90s to provide for legislative review of rules,” Givens told senators during their debate. “Almost all of the ‘disapproval’ bills that have been introduced in the dozen or so years since legislative review or rules became effective have been environmental bills, and the number of those is something on the order of 20 or less.”
Givens remembers no “disapproval” bill ever passing or failing. “They have all been compromised into some negotiation process,” he said. “This is the third short session in a row that we’ve had a stormwater bill being compromised.”
Lawmakers created the Environmental Management Commission and charged it with adopting rules on a wide range of environmental subjects, Givens said. “As time has gone on, I think the practical effect of legislative review of rules is that the EMC has become an advisory body to the legislature, and in a real sense we’re their final arbiters. It may be appropriate to rethink the role of the EMC at some future time and in some future bill. But this is not that bill.”
The bill still needs support from the House to become law. If lawmakers reach no agreement on the compromise before they adjourn this year’s session, the Environmental Management Commission’s more stringent rules will take effect.
Mitch Kokai is an associate editor of Carolina Journal.