Wednesday, July 23, 2008

Create a full-time environmental commission?

Dave Insco, executive director of Carteret Economic Development in Morehead City, had some thoughts about a recent column I wrote about the tendency of the N.C. General Assembly to rewrite environmental rules developed over a multi-year period by the N.C. Environmental Management Commission. He got involved in a legislative discussion called a stakeholder process to work out problems with the proposed coastal stormwater rules, and had this to say:

"I don't pretend to know how rules should be made, but I can assure you from my experience, that the way it is being done in North Carolina by the Environmental Management Commission is not working.

"As we went through the rules line by line that the EMC and RRC [Rules Review Commission] had passed, we uncovered numerous errors and "unintended consequences."
More than once, the Division of Water Quality Staff admitted that the rules needed to be corrected or that "that was not the intention" of the rules, even though the consequences were devastating.

"So my conclusion is that the rule making process is broken - severely broken. I don't know how or who will or can take the responsibility to correct it, but as a citizen of North Carolina, I am deeply concerned.

"If what I've seen with my experience dealing with the rule making process is indicative of what goes on in every state agency, I am truly amazed that North Carolina government works as well as it does."

That column mentioned that Gov. Jim Hunt had thought about abolishing the citizen-based Environmental Management Commission and replacing it with a professional commission, with adequate staff, similar to the N.C. Utilities Commission, which regulates public utilities. A few days after that column ran in the Observer and the News & Observer, the legislature approved this provision in H 2431, the Studies Bill, hours before adjourning:

"SECTION 6.4. Consolidation of Environmental Regulatory Programs – The Commission (Environmental Review Commission) may study the desirability of abolishing existing environmental regulatory programs and replacing them with a new, full time Environmental Management Commission modeled on the Utilities Commission in order to improve efficiency, communication, and coordination within State government in the development and implementation of environmental and natural resources policy."

Dave Inscoe sent along a reference to that bill, and added,
"It seems that others recognize that the EMC rule making process is broken. As I pointed out, the Coastal Stormwater Rules are very complex, and an appointed, part-time Commission cannot be expected to understand the many details of complex rules. The rules are written by staff members, many of whom have bias, and as such the rules can easily contain "unintended consequences" and technical errors.

"Hopefully, the legislature will assume their responsibility by abolishing the EMC and establishing a full-time professional commission -and maybe then developers, economic developers, and coastal governments won't have to appeal every rule they make to the legislature."

Will a professional EMC have a chance in the next legislature? I dunno, but legislative staffers reminded me the other day that Jim Hunt was not the only person interested in the possibility. So was Bev Perdue, now the Democratic nominee for governor.


edc said...

The following article on this issue is in the Washington (NC) Daily News:

Wednesday, July 23, 2008

Local News

Commission Generates Controversy

Panel often caught

in disputes among

differing factions


Staff Writer

On its face, the N.C. Environmental Management Commission is a regulatory body, writing environmental rules that state officials use to issue permits that control development and other activities that affect the state’s environment.

But in the face of some public outcry, the General Assembly has rewritten two sets of stormwater regulations the commission recently proposed, including a set of regulations for coastal counties that were passed by the General Assembly last week.

Now, advocates from both sides of the negotiations who brokered the final compromise on the coastal stormwater rules are questioning the effectiveness of the state’s environmental rule-making process.

Officials from local governments believe the commission is too cavalier with local livelihoods in its pursuit of environmental protection.

Environmental advocates believe the intervention of lobbyists and politicians is polluting and undermining an otherwise scientifically based process.

And the commission’s chairman finds the interventions frustrating.

“They’re treating our rules as a draft,” said David Moreau, the commission’s chairman and a professor emeritus in the Department of City and Regional Planning at the University of North Carolina at Chapel Hill.

Amy Fulk, chief of staff to Sen. Marc Basnight, president pro tempore of the state Senate, said the key is to protect the environment without burdening individual residents.

“It’s Sen. Basnight’s opinion that we need to be doing whatever we can to protect water quality, but not to the point that we’re creating huge bureaucratic hurdles,” she said.

By statute, Basnight appoints three members to the commission.

In the most recent case, the commission proposed new, more-restrictive rules governing stormwater runoff in many eastern North Carolina counties. Designed to help protect shellfish beds, the rules were to be applied county-wide in all counties close to shellfish beds.

That meant that people in areas such as Pinetown would have faced the more-stringent permit requirements, even though the only shellfish waters in Beaufort County are near Aurora and Pamlico Beach.

But 12 coastal counties, including Beaufort County, hired a lobbyist and worked, along with pro-development groups, to change the rules. They argued the proposed regulations would impede an already-foundering real-estate market.

In the end, the General Assembly relaxed the new rules significantly, limiting the most-stringent restrictions to areas within a half a mile of shellfish waters.

The final regulations emerged from a negotiation process that included representatives from both sides of the issue.

But it was a negotiation process both sides said should have been made unnecessary by the commission’s own in-house process, which takes years to review prospective rules.

Heather Jacobs, the Pamlico-Tar River Foundation’s riverkeeper, said that while the compromise bill maintains most of the core items that environmentalists had wanted, those items aren’t as thorough as what the commission first proposed.

She said the rewriting of the commission-proposed rules by a political body is “the thing that bothers me the most” in the stormwater-rules process, ahead of the concessions the environmentalists made during the negotiations.

She praised the science and engineering backgrounds of many commission members, and she said constant intervention by the General Assembly raises the possibility of a process in which lobbyists have more input in environmental regulation than scientists.

“They basically have just become an advisory role for the General Assembly,” she said.

Beaufort County Manager Paul Spruill, who was the lead county manager in the 12-county coalition that fought the rules, said the General Assembly’s intervention was needed because the commission pays disproportionately more attention to environmental effects than to effects on people.

“Any process that would have allowed a rule so severe and restrictive as the original Environmental Management Commission rewrite to take effect … is a broken process,” he said.

The 19-member commission does specifically include one agricultural representative, one industrial representative and one municipal government representative. It also specified the process by which the commission makes rules, with that process including opportunities for the public to comment on those proposed rules.

Spruill said he attended commission meetings and did comment, but he still ended up fighting the commission’s proposed rules.

“The General Assembly is a sovereign power,” Moreau said. “They set the rules by which we play the game. There’s no dispute about that.”

Commission lawyers are reviewing the new permitting standards. Moreau said he is worried those standards may not meet, in all cases, the federally set standards — which come from legislation including the Clean Water Act — that the commission is charged with upholding.

“I don’t anticipate that there will be wholesale withholding of permits, but in particular circumstances there may be questions about it,” he said.

The next set of regulations Moreau believes could cause controversy are rules designed to improve water quality at B. Everett Jordan Lake south of Raleigh, he said.

Municipalities in the Triangle area may oppose the tougher standards on nitrogen and phosphorous levels in runoff because they could require retrofitting of existing municipal infrastructures, he said.

The proposed regulations are before the N.C. Rules Review Commission, he said.

“If the pattern follows, they will go straight to the General Assembly for a rewrite,” he said.

Copyright The Washington Daily News unless otherwise noted.

Bill Price said...

e-mail Exchange between Land Alliance and George Givens , moderator of the General Assemblies 605 process.

Bill Price
Land Alliance of North Carolina

DT: 6/ 28/ 2008
TO: Mr. George Givens
FR: Bill Price Land Alliance

Mr. Givens

As you so adroitly put it,,,, these Rules are based on Political Science, not Science.

Unfortunately,,, with Increased Wildlife in Buffers, No Action to Repair Failing Septic Tanks, No Filters for Gas, Oil and Grease, no Action to Clear Siltation from Creek Inlets, and No Study of DNA, this Law may actually worsen Water Quality.
For DWQ to say that these issues are subject to management of other departments, or simply to ignore the issues is most disappointing.

As it is clear that the DWQ and the EMC have completely failed in this in the past, and their consistent refusal to reasonably respond to questions on the issues thru this entire process indicate they are unlikely to do so in the future; consequently, we feel that not to include a requirement to 'Study and Sunset" in the Law for political expediency is both shortsighted and a disservice to the taxpayers on North Carolina.

We believe that our Environment in NC is important, and so, we feel strongly that we should have Rules that Will Work to Protect Water Quality * and said laws and rules should be based on Valid Science not Political Science.

We request that HB 2138 Provide for valid independent study of Water Quality Issues, and a Sunset of the Rules .

Thank for for your careful consideration of this request.

Bill Price
Land Alliance of North Carolina

PS: Included again is a list of Questions that the Land Alliance has been asking of the DWQ for the past year.
To this point we have not had the courtesy of any response.


On Jun 29, 2008, at 6:47 PM, George Givens (Research) wrote:

Mr. Price-- Thank you for your comments below. While I don't recall exactly what I may or may not have said some weeks ago, I have not taken a position on the adequacy of the scientific basis for the coastal stormwater rules, a matter on which opinion varies substantially among participants in the Working Group. What I did say was something to the effect that resolution of issues related to the rules, as with all questions of public policy, rests more with political science than with science. Those on any side of an issue who believe that "science" provides a definitive answer to a question of policy (or that, in the absence of "adequate" science nothing should be done) often object to making a decision on the basis of "politics."

In reality, the political process ("politics" or political science) inevitably relies not only on science, but on many other factors, some of which are not always rational or even realized, including emotions, economics (the dismal science), and the reality that sometimes some people choose to believe something akin to the idea that the earth is flat. Sometimes these folks are in the majority. What I most certainly did say is that science is a process. . . a process of asking questions, learning answers, asking better questions, learning better answers and so on forever. . . science is not a preexisting body of truth. At any given time, the state of the science is better than it was, and is generally not good enough, or in any case not as good as it will be.

Whether the "political science" response to that scientific reality is to limit a particular policy decision with a sunset or to rely on the constitutional and legal methods by which the policy decision can later be revisited (by filing a bill in a future legislature, petitioning for rule making, etc.) is a question that I take seriously, and I appreciate your thoughts in this instance. In any event, the ultimate policy decision in this and every other matter will be made not by me but by the elected members of the legislature for whom I work. Again, thank you for your comments. --George

Subject: Re: CRWG - HB 2138 SUNSET
Date: June 29, 2008 8:11:22 PM EDT

Mr. Givens,

I am most appreciative for your thoughtful response.

While certainly you are correct in observing that "science" is a process,
and certainly we fully understand the evolving nature of knowledge; however, in this instance, there are elements of the science that ARE firmly established , but that have, for many years, been ignored by the environmental bureaucracy for political purposes.
Moreover there are serious and reasonable questions regarding the efficacy and consequences of this body of environmental laws and rules than have also been ignored, again, seemingly for political purposes .

How can the Department, The Environmental Organizations, or the Political hierarchy honestly
object to reasonable and independent study directed to ACTUALLY Protecting Water Quality ?
In fact, the General Assembly did authorize, a study of innovative storm water management in the '07 GA, but somehow, we are urgently making Law on these issues well before that study has even begun.
( And this, in the face of documentation indicating that for the most rapidly developing Coastline counties, more shellfish waters were open in ‘06 than in ‘71, ( This documentation is evidenced without even adjusting for the clean water areas that are closed due to marina rules. Clearly, this pseudo sense of urgency is only concocted to serve objectives of “Political Science”.)

Please be firmly assured however, that it has never been the position of the Land Alliance that " nothing should be done".
We have repeatedly and specifically asked for study and action to deal with Failing Septic Tanks, Gas Oil and Grease Absorbers in Storm Drainage, Wildlife Pollution from Increased Buffer areas, and Clearing Sediments from Creek Inlets to reduce Stagnation, all of which could easily be underwritten by the Clean Water Trust Fund funds to great and good benefit .
( But, what are CWTF moneys used for ? Do you know ? )

However and unfortunately, our requests have been completely ignored.
So, upon what historical perspective should we have hope the Department will act on these issues,
if they refuse to even consider the problems ?

The citizens of North Carolina deserve better than this.
You are in a position to do something about this continuing deception.
We hope you will.

Bill Price
Land Alliance of North Carolina .


Nothing was done. BP

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