Thanks to Nadia Luhr and the NC Conservation Network for this excellent update!
1. The Big Picture
They’re back … It’s hard to believe, but the 2014 legislative short session will begin this Wednesday, May 14th. While the short session typically lasts two or three months, it could be even more brief this year. All members of the General Assembly will be running for reelection in November, and presumably will be eager to wrap up the session in order to work on their campaigns (while doing as little damage as possible). Rumor has it that session will only last through mid-June, but with a number of complex issues to work through, it could drag on longer than expected.
The short session tends to prioritize a small number of key issues, with legislators focusing heavily on revising the biennial budget. Other key issues have been identified ahead of session and will include teacher pay, Medicaid, coal ash, fracking and possibly regulatory reform. Other environmental issues such as isolated wetlands and local ordinance preemption will likely also be addressed. With such a strong emphasis on environmental legislation, the upcoming weeks will be very important for the environmental community.
Legislators are generally not able to introduce new legislation during the short session. The only bills that are eligible for consideration are:
The restriction on new legislation is easy to bypass, however, by simply inserting new provisions into existing eligible bills.
Following the Dan River coal ash spill earlier this year, coal ash is at the forefront of the legislative agenda for both Republicans and Democrats. While there has been a great deal of media attention and legislative discussion around the issue, legislators have yet to unveil any specific proposals (although the Governor did strangely offer his own proposal in April, which both Republicans and Democrats dismissed as being too weak).
The Environmental Review Commission has assigned Representatives Hager, Samuelson and McGrady to examine possible legislation, while Senator Apodaca has been deployed on the Senate side to draft legislation, as well. There have been rumblings of bills being sponsored by other members, but at this point it is likely that either Apodaca’s Senate bill or an ERC proposal (which would likely be inserted into the wastewater spill notification bill described below) will take the lead and move forward.
Coal ash has been named a top priority for the short session, and coal ash legislation will likely move quickly once session begins.
A number of environmental bills were recommended by legislative committees during the interim following the 2013 long session. These bills, still in draft form, will be eligible for consideration this year. Key provisions from those bills are below:
Fracking – Released just this week, the draft bill contains 29 pages of provisions that focus mainly on fracking. Part I extends the deadline for the adoption of rules from October 2014 to January 2015. Part II deems the rules eligible for legislative review during the 2015 long session and allows thirty calendar days for the legislature to disapprove any portion of the rules. Part II also exempts the rules from fiscal note requirements and from the requirement that environmental rules not be more strict than the federal standard. Part III establishes an Oil and Gas Commission and reinstates the Mining Commission. The terms of the current Mining and Energy Commission will expire on July 31, 2015. Part IV requires DENR to hold all information designated as confidential or as a trade secret, and sets requirements for the disclosure of information to first responders and medical personnel in the event of an emergency. Part IV also reduces the distance within which presumptive liability for water contamination exists and within which pre-drilling testing of water supplies must occur from 5,000 feet to a one-half mile radius. In addition, Part IV prohibits local ordinances that prohibit oil and gas exploration, development and production activities. Part IV also prohibits the subsurface injection of fracking waste and mandates a review of each permit applicant’s environmental compliance history. Part V establishes a severance tax and prohibits local governments from imposing taxes on oil and gas activities. Part VI mandates a number of studies, including studies examining: taxation; potential construction of a liquefied natural gas export terminal in North Carolina; energy-related traffic; potential community college programs to prepare students for employment in the oil and gas industry; compulsory pooling; dormant mineral statutes; the development of midstream infrastructure to facilitiate oil and gas activities; a comprehensive long-range state energy policy (including examination of the Renewable Energy Portfolio Standard). Part VII allows the Energy Policy Council to use legal support provided by DENR rather than the Attorney General’s office.
Local environmental ordinances – Repeals the moratorium on local environmental ordinances (created last year in House Bill 74), but explicitly preempts the local regulation of fertilizers. The draft bill also directs DENR and the Department of Agriculture to report to the ERC on any local government ordinances that impinge on or interfere with “any area subject to regulation by” the agencies.
Local regulation of fertilizers and trees – Preempts the local regulation of fertilizers, and prohibits local governments from regulating the removal, replacement and preservation of trees on private property.
Agricultural records – Provides that state records containing GPS coordinates or aerial photographs of an agricultural operation are not public records.
Isolated wetlands – Increases the regulatory threshold for isolated wetlands to 1/3 of an acre west of I-95 and 1 acre east of I-95. The draft bill also reduces the amount of mitigation required (from a 2:1 to a 1:1 ratio) for projects that impact isolated wetlands. Lastly, it directs DENR to study mountain bogs to determine whether they should be addressed using a different regulatory threshold.
Reporting and notice of wastewater spills – In the event of a discharge of 1,000 gallons or more of untreated wastewater into surface waters, the facility must report the spill to DENR within 24 hours of discovery. The draft bill also reduces the amount of time the facility has to report the spill to the public from 48 hours to 24 hours.
Executive Order termination – Terminates Executive Order 22 (“To Protect the Public from Solid Waste”), signed by Governor McCrory after the 2013 short session. The EO addressed the provision in House Bill 74 that allowed garbage trucks to be leak resistant rather than leak proof. The bill is expected to eventually include termination of additional executive orders from the Easley, Purdue and McCrory administrations.
Gravel – Strikes “gravel” from the definition of a built upon area for the purpose of stormwater programs (addresses 2013 legislation), and prohibits DENR and the EMC from defining the term “gravel” for the purpose of stormwater programs. The draft bill also directs DENR to fund an NC State University study (up to $110,000) to determine the extent to which different aggregate surfaces are pervious, impervious or partially pervious.
Study of interbasin transfer laws – Directs DENR to study the laws and regulations governing interbasin transfers. The study must include an examination of whether certain interbasin transfers (temporary transfers, emergency transfers and transfers between river sub-basins) should be subject to different requirements, and whether certain transfers should be exempt from regulatory requirements.
Study of water and sewer systems – Directs the Program Evaluation Division to study benefits that may result from the merger of public water systems and wastewater collection and treatment works.
Fish and wildlife management – Establishes a Joint Legislative Commission on Fish and Wildlife.
State Nature and Historic Preserve deletions – Removes certain parcels from the State Nature and Historic Preserve properties so they can be used for other purposes. Deletions include tracts within Gorges State Park, Lower Haw River State Natural Area, Lumber River State Park, Crowders Mountain State Park and Jockey’s Ridge State Park.
The following bills were introduced during the 2013 long session and are eligible for consideration this year. Several of these bills contain provisions that have already passed in other legislation, but could potentially be used as vehicles for new provisions.
A full summary of 2013 legislation is available here (the summary of remaining eligible bills begins on page 9).
S10 (Government Reorganization and Efficiency Act)
H89 (DENR Support for Regional Water Supply System)