LEGISLATIVE UPDATE

The Following bills relating to environmental issues were introduced during the 1998 short session.

SENATE BILLS

S1295: Neuse Modeling Project Funds.

This bill appropriates funds to monitor and model the Neuse River and estuary, develop a hydrodynamic model of the Neuse watershed and link the models so that the effectiveness of current nutrient management strategies for the Neuse Basin can be determined.

S1299: Bill to amend laws regarding interbasin transfer.

This bill was reported out of the Environmental Review Commission and will be introduced during the short session. Among its provisions are:

• adds a new section, N.C.G.S. 113A-8.1, to Environmental Policy Act (SEPA) to require environmental assessment prior to issuance of an interbasin transfer certificate (this codifies current practice);

• amends N.C.G.S. 143-211 to codify the antidegradation water quality policy at 15A NCAC 2B.0201 and requires that interbasin transfers from a source basin not degrade the water quality of the basin or diminish assimilative capacity of the basin waters;

• amends N.C.G.S. 143-215.8B to require the Environmental Management Commission (EMC) to consider the cumulative impact of interbasin transfers into and from each river basin as a part of the basinwide water quality management plans;

• amends N.C.G.S. 143-215.22H to lower the threshold for triggering the interbasin transfer certificate requirement to 100,000 gallons from the present threshold of 2,000,000 gallons;

• amends N.C.G.S. 143-215.22I regulating interbasin transfers to require that local water supply plans be used to evaluate future municipal water needs within a river basin prior to issuing a certificate for interbasin transfer, that the cost of the required environmental assessment for an interbasin transfer be borne by the applicant (this codifies existing practice), and that a drought management plan be prepared as a condition of any interbasin transfer certificate.

The most dramatic change that would be wrought by this bill is the 95% reduction in the threshold for those interbasin transfers requiring prior approval to 100,000 gallons.

S1329, 1330, 1331: Bills to Establish Water Quality Fees and End CDE Leaking UST Cleanups.

These bills appear to overlap to some degree. The bill text was not available at the time of publication, but a short synopsis of the author's understanding of these bills is included:

• they amend the general statutes to establish a schedule of fees under the water quality program, as recommended by the Water Quality Programs Funding Working Group (chaired by Jeffrey Morse of the EMC); and

• they require the EMC to classify the impact of leaking underground petroleum storage tanks as either AB or CDE and to provide that the owner or operator of a tank with a CDE impact shall not be required to clean up the discharge or release.

HOUSE BILLS

H1317: Bill to Amend Contested Case Procedures.

This bill would make the findings of fact by an administrative law judge (ALJ) binding on the agency making the final agency decision if those findings are supported by substantial evidence in view of the entire record (with an exception for policies and need determinations in the State Medical Facilities Plan). Agencies are allowed to seek judicial review of procedural errors by the ALJ where the agency was required to adopt the ALJ's findings of fact, but the agency concludes that, although the findings are supported by substantial evidence, the record contains significant evidentiary errors. In addition, the time period that an agency has to render its decision from the time it receives the official record of a contested case would be reduced to 45 days (if the agency is a commission, the 45 days may begin to run from the date of its next regularly scheduled meeting).

H1322: Bill to Establish the Beach Renourishment Fund.

This bill creates a Beach Renourishment Fund funded with 5% of any unreserved credit balance remaining in the General Fund at the end of each fiscal year. Beach communities would be allowed to apply for grants for beach renourishment projects. Matching requirements may be established by the board of trustees of the fund. Three members of the board would be appointed by the governor, three by the president pro tem of the Senate, and three by the speaker of the House of Representatives. Grant criteria would be established by the board.

H1402: Bill to Disapprove the Neuse River Basin Rule

This bill would disapprove the Neuse Basin Riparian Buffer Rule, 15A NCAC 2B.0233. The rule currently establishes a 50 foot buffer on either side of any perennial or intermittent stream, lake, pond or estuary within the Neuse Basin. The rule has caused considerable consternation in the development community as it interferes with many developments owning to the reach of the rule to all intermittent or perennial streams within the basin. As originally proposed, the rule would have affected only those streams, lakes, ponds or estuaries indicated by solid or dashed blue line on the most recent version of the U.S.G.S. 1:24,000 scale topographical maps (7.5 minute quadrangles). When the temporary rule was approved, the EMC amended it to provide that perennial or intermittent streams would be identified using site-specific evidence. That amendment reportedly has substantially broadened the reach of the rule. This may be the first rule of the EMC for which the effective date would be postponed as the result of the introduction of a bill within the first 31 legislative days of the next regular legislative session, as provided by the Administrative Procedure Act reforms of the 1997 session of the General Assembly. There remains some question whether the action would have any impact on the effectiveness of the temporary rule.

H1408: Beach Erosion Control Funds.

This bill would appropriate $10,000,000.00 for the purpose of beach erosion. Half of this amount would be used to assist with relocation of structures that violate Coastal Area Management Act (CAMA) setback lines, and the rest would be used to acquire property that is not buildable under CAMA rules as a result of beach erosion.

H1415: Bill to Improve Sedimentation Control.

This bill would amend N.C.G.S. 113A-57(2) to reduce the period that developers have to establish erosion control measures on exposed slope to the shorter of 15 working days or 30 calendar days from the date of completion of grading. Additionally, N.C.G.S. 113-65.1 (d) would be amended to provide that stop-work orders would become effective upon service. Stop-work orders may be issued for a period not to exceed five days (increased from three), and any person who violates the terms of stop-work order may be assessed civil penalties in accordance with N.C.G.S. 113A-64(a).

H1416: Sedimentation Control Funds.

This bill calls for the appropriation of $6,548,517.00 for improving the implementation of the Sedimentation Pollution Control Act of 1973.

This legislative update was written by Craig Bromby with Hunton & Williams in Raleigh. North Carolina.