July 9, 2019. The 2019 legislative session got off to a very slow start. Few bills moved before the May 9 deadline for substantive bills to pass one chamber of the legislature to stay alive. The pace picked up in the last month as both the House and Senate passed versions of a budget bill (House Bill 966) and then agreed on a final budget. Governor Cooper immediately vetoed the budget bill for reasons unrelated to environmental provisions. (The Governor’s veto statement criticized the legislature’s budget priorities; refusal to expand the state’s Medicaid program had been one sticking point.) This blogpost looks at some of the environmental provisions in the budget.
Funding Related to Emerging Contaminants Such as GenX.
♦ Reallocation of state funding appropriated in 2018 to extend water lines in areas with well contamination caused by GenX. In 2018, the legislature allocated $2 million to DEQ’s Division of Water Infrastructure to help local governments extend water lines to properties affected by contamination caused by per‑ and poly‑fluoroalkyl substances (PFAS) including GenX. Section 12.13 of the 2019 budget bill reallocates those funds for a number of projects unrelated to PFAS. In February 2019, Chemours entered into a settlement agreement with DEQ that requires the company to provide a replacement water supply to any person whose well has PFAS contamination above the health advisory level. Under the agreement, the replacement water supply means connection to a public water system unless the well owner declines or DEQ finds it would be prohibitively expensive or unsafe.
♦ Additional funds to address emerging contaminants through water quality permitting. The budget funds five new positions in DEQ to address emerging contaminants. The positions include two new engineers to work on issuance and renewal of Clean Water Act wastewater discharge permits.
State Funding to Eliminate a Conservation Easement and Buy Back Mitigation Credits. In an unusual (and unprecedented) provision, the legislature earmarked over $800,000 to eliminate a conservation easement on a completed stream restoration project. The project, restoration of Little Alamance Creek in Burlington, was completed in 2012-2013. The creek had impaired water quality; the restoration project, which included replanting stream bank vegetation, was designed to improve water quality in the creek. The stream restoration project also generated mitigation credits intended to offset the stream impacts of N.C. Department of Transportation (NCDOT) road construction projects. (Federal and state water quality permits often require the project developer to offset stream or wetland impacts by funding restoration of similar natural resources.)
The City of Burlington donated property for the conservation easement, which runs through a Burlington city park, but later had both aesthetic and public safety concerns about the completed stream restoration. According to city staff, trees planted along the stream had not overtaken the shrubby undergrowth as expected. City officials were unhappy with the appearance of revegetated stream bank and worried that the vegetation provided cover for criminal activity.
The budget provision requires DEQ to dissolve the conservation easement on Little Alamance Creek and reimburse funds used to purchase mitigation credits generated by the project. If NCDOT received mitigation credits from the Little Alamance Creek project as expected, the department will have to buy mitigation credits from other stream restoration projects to stay in compliance with its road construction permits. In that case, taxpayers will have paid for the mitigation credits twice since there is no possibility of recovering funds already spent on restoration of Little Alamance Creek. If a private developer received any of the credits generated by the project, the state buyback would be used to replace the developer’s credits. The cost is significant; the budget appropriates $837,755.00, but also directs DEQ to draw on other department funds if the actual cost exceeds the amount appropriated.
Removal of the conservation easement may allow the City of Burlington to alter the stream bank vegetation. It isn’t clear whether the city has a specific plan or what impact the changes will have on the stream’s water quality.
Delay Update of State Water Quality Permits for Large Animal Operations. One of the policy provisions in the budget delays renewal of the water quality permit that covers most large animal operations. DEQ had completed a nearly year-long process to update and reissue the state water quality permits for large animal operations, including swine farms. The general permits set operating conditions for different categories of farms to protect surface water and groundwater from contamination by animal waste. The recently finalized general permits included some new or modified conditions, including a requirement for swine farms to monitor groundwater quality around waste lagoons located in the 100-year floodplain.
The N.C. Farm Bureau filed an appeal to challenge some of the conditions on the new general permits. In Section 12.19, the budget bill prevents DEQ from covering farms under the new general permits until 2020. In effect, the bill delays enforcement of any new conditions and allows farms to continue to operate under the old permits while the N.C. Farm Bureau pursues its appeal.
During the delay, the budget provision directs DEQ to study whether water quality general permits should be adopted under the rule making procedures in the state’s Administrative Procedures Act. Note: As a practical matter, the process DEQ used to develop and finalize the general permits exceeded the basic public notice and hearing requirements of the APA.