RRC STAFF RECOMMENDATION

RRC STAFF COMMENT

Please Note: This communication is either 1) only the recommendation of an RRC Commission Counsel as to action that the attorney believes the Commission should take on the cited rule at its next meeting, or 2) an opinion of that attorney as to some matter concerning that rule. The agency and members of the public are invited to submit their own comments and recommendations (according to RRC rules) to the Commission.

AGENCY: N.C. ENVIRONMENTAL MANAGEMENT COMMISSION

RULE CITATION: 15A NCAC 02B .0262

COMMENT:

Opinion: Object Entire Rule Ambiguous

There is no rule setting out what these rules cover or their purpose. In a set of rules such as these it would be much easier to comprehend if there were one rule introducing the rules and explaining their “purpose and scope.” Each of these rules appears to be a single self-contained rule that refers to other rules to the extent necessary to understand that rule. However, they are actually a set of rules that need to be read and understood in the context of all the other rules.

The entire set of rules would be easier to comprehend if the first rule were simply a “Purpose and Scope” rule used to explain what the entire set of rules does. Agencies often use such a rule to explain what the remainder of the rules in a section are about. In this case it could also be used as a more complete index to indicate what the remaining rules cover and where they are found than the current listing of the rule titles at the far removed beginning of the chapter.

It seems to me that there should be added, either as a part of this rule or as a second rule, a “definitions” rule. If they were added to the first rule it would make that rule “Purpose, Scope, and Definitions.” There are many definitions scattered throughout this chapter. While those definitions are set out where the terms are most important and most often used, and as written apply only to the specific rule, those terms may be used in other rules and should have the same meaning. Having all those definitions at the outset would make that clearer.

The definitions found throughout these rules state that they apply “for purposes of this Rule” in the individual rules in which they are found. Undoubtedly the same definition would actually apply to the same word wherever it was found anywhere else in these rules. For example the definition of “tree” is found in Rule .0267(2)(t) and according to that rule applies only to that rule. However it is critical to an understanding of the requirements of Rule .0268 dealing with enhancement and restoration of buffers to know the definition of a tree. Rather than searching through each of these rules and requiring the agency to make a reference to where the definition of an otherwise undefined term is found, the RRC should object to all these rules and have the agency write a definitions rule.

Opinion: Object: line 5, “Jordan watershed” Ambiguous

(This was originally a technical change request that was not complied with.)

It is unclear whether the reference in line 5 to “Jordan watershed” as the referential term for the “B. Everett Jordan Reservoir and all lands and waters within its watershed” is the only referential term used. It appears that it is not and is thus ambiguous since the agency appears to refer to it in a number of different ways including “Jordan Reservoir” or “Reservoir.” If those terms also refer to the watershed, then they should be referenced here or changed to “Jordan watershed.” If they are not referential terms for the “Jordan watershed” then it is unclear what they do refer to.

Opinion: Object: line 6, “supplementally” Ambiguous or Unnecessary

(This was originally a technical change request that was not complied with.)

Object to the reference in line 6 to waters being “supplementally” classified as either ambiguous or unnecessary. If it is necessary to refer to a change in classification as being “supplemental” then it is unclear whether that is the correct term since the rule referred to, 2B .0223, uses the term “additionally classified,” not “supplementally classified.”

Opinion: Approve: Issue of Underlying Authority

The sentence in lines 15 through 17, and many additional places throughout these rules, require local governments to “amend existing ordinances and programs as needed or adopt ordinances and programs to comply with these requirements.” It is my position that normally a state agency does not have the authority to compel local governments to adopt laws. However there are many places in the authority cited for these rules where it appears to be clear that the General Assembly intended for, or at least allowed for the possibility that, the EMC would compel local governments to enact their own laws governing water supplies and watersheds that the EMC has the authority to set standards for.

G.S. 143-214.5(a), a statute that pertains to water supply watershed protection, refers to “if a local government fails to adopt a water supply watershed protection program ….” In (d), headed “Mandatory Local Programs,” the General Assembly, in perhaps the strongest support for the proposition that the EMC does have this authority, requires that “local government compliance programs shall include (emphasis added) an implementing local ordinance. It goes on to add that “every local government … shall submit local … management and protection ordinance[s] to the Commission for approval.” [There are conditions that the EMC must meet before this requirement to submit a local ordinance takes effect, but that is not applicable to this particular analysis.] Even more strongly (g) goes on to subject a local government “that fails to adopt a local water supply watershed protection program as required by this section … to a civil penalty.”

Less strongly G.S. 143-214.7(c), Stormwater Runoff Rules and Programs, recognizes that local governments might wish to adopt ordinances to address stormwater runoff rules from the EMC in that it authorizes them to do so but does not directly require them to do so. If these rules were about only stormwater runoff, then I would submit the agency has no authority to require local governments to enact ordinances. But since the rules concern maintaining a critical water supply watershed in good condition with low levels of harmful nutrients that can be deposited by runoff stormwater, then the stormwater requirements directly affect the quality of the water supply and the local government mandates, even in that stormwater area, are valid.

Opinion: Object: (1) line 19, “particularly” Ambiguous or Unnecessary

Object to the use of “particularly” in (1) line 19 as either ambiguous or unnecessary. It is difficult to understand what the word adds to the meaning of that sentence. If it does have some specific meaning it is unclear what that meaning is.

(This was originally a technical change request that was not complied with.)

Opinion: Object: (3)(a)(1) page 2 line 19, “TMDL” Ambiguous or Unnecessary

In (3)(a)(i) it is confusing to define a word or acronym “(TMDL)” in terms of a parenthetical expression within a single rule since this is a term that occurs other places in this rule and other rules. If a person does not remember its meaning it might be hard to locate it here. It should be set in a separate definitions rule.

Opinion: Object: (3)(a)(1) page 2 lines 20 - 22, “point source mass load target” – Ambiguous or Unnecessary

In lines 20 – 22 and in other places in this and other rules, this rule refers to a “point [or nonpoint] source mass load target.” In Rule .0270(4)(a), page 3 line 13 and other places, that rule refers to, what I believe is the same thing, but uses the term “wasteload.” If they are the same, then the agency should consistently use the same term to avoid any confusion, misunderstanding, or perplexity as to whether they mean the same, or at least have a definition that specifies they mean the same. If they have different meanings, then the meaning of the two terms is unclear and they need definitions.

(This was originally a technical change request that was not complied with.)

TCR: In (5), page 3 line 36, the agency still needs to correct the formatting of the comma added after the second “sources,” later in that line.

(This was originally a technical change request that was not complied with.)

Opinion: Object: (6), (6)(a) and (6)(b), page 4 and 5 Ambiguous

Staff did not recommend an objection to this portion in June. However he did make technical change requests addressing this issue. Those changes were not made.

In (6) it is unclear which local governments, counties or municipalities “in part or in whole” (line 20) are responsible for implementing these requirements. Presumably that would be revealed in the remainder of the rule. But it is not and the rule is unclear.

It is unclear in (6)(a) what it means for incorporated municipalities to be “primarily” liable to implement the enumerated rules. It is unclear whether if they do not do the implementation someone else (presumably the counties) is “secondarily” liable with no penalty or sanction for the “primarily liable” party. Since rule (6)(b) refers to counties implementing these requirements where municipalities “do not have an implementation requirement” it is unclear whether the municipalities who are “primarily” liable in (6)(a) and choose not or do not implement the requirement make the counties responsible for implementing the requirements if the municipalities choose not to do the implementation.

If it is a “primary” responsibility and not a sole responsibility it is also unclear what time limits apply for the municipalities and then the counties to take action. In other words if a municipality is “primarily” liable, does it have an actual “implementation requirement?”

Opinion: Object: (6)(c) page 5 lines 30 – 32 Ambiguous and Lack of Statutory Authority

In (6)(c), page 5 lines 30 – 32, it is unclear what standards the division shall use in approving the local government implementation agreement. If those standards are set outside rulemaking, there is no authority to do so.

Opinion: Item (7) Object – Ambiguous

The timeframe for complying with the various components of these rules is unclear. It seems to me that the time set out in (7) of this rule, “at least five years of implementation” before making any adjustment differs from the time frames in other rules. The other rules are all addressed to particular components of the strategy, such as agricultural uses (Rule .0264) and reducing the non-point source contribution from agricultural activities.

If the particular should control over the general, then perhaps the rules are perfectly clear and my concern could be addressed by the technical change requested last month and not complied with:

TCR: In (7), page 5 line 31 [now line 34], insert “Unless a different timeframe or deadline as set in one of these rules apply” or similar language after “Adaptive Management.”

However as this rule and the others are written, with no reference to any other rule, then the rule is unclear.

Opinion: Object: (7) page 6 line 10 Ambiguous or Unnecessary

In (7), page 6 lines 5 and 6, since the adjustment is to be done by rulemaking as set out earlier in this rule (page 5 line 35), it is unclear what role the Commission would have in approving the adjustment after it has gone through rulemaking. Presumably any adjustment they set in rulemaking would meet with the Commission’s approval.

Opinion: Object : (7) last sentence Ambiguous and Unnecessary

If the last sentence in (7) means that the EMC may also have to look at other criteria and conditions than they have at present and incorporate those into the modeling that they do, then that is not a requirement or prohibition that applies to or affects this rule and its meaning is unclear. It is not a standard and not necessary for this rule. When they engage in any future rulemaking to adjust the initial loading goals set in this rule, they may use any method they desire. The use of that last sentence here is unnecessary and may be confusing if persons believe that it involves any sort of requirement or restriction at this time.

Opinion: Approve: Items (8) and (9)

Items (8) and (9) are not necessary, but they are acceptable. Item (8) serves as notice to people that the EMC may engage in future rulemaking to address issues not addressed by these rules. Item (9) reminds people that they are subject to a wide range of penalties for not complying with these rules. While in themselves they are not actually rules since they impose no requirements, limitations, or privileges not found in the general statutes or other rules, they do not do any harm and in this context should be acceptable.

RRC STAFF COMMENT

Please Note: This communication is either 1) only the recommendation of an RRC Commission Counsel as to action that the attorney believes the Commission should take on the cited rule at its next meeting, or 2) an opinion of that attorney as to some matter concerning that rule. The agency and members of the public are invited to submit their own Opinions and recommendations (according to RRC rules) to the Commission.

AGENCY: N.C. ENVIRONMENTAL MANAGEMENT COMMISSION

RULE CITATION: 15A NCAC 02B .0263

COMMENT:

Opinion: Object: Introductory Paragraph Ambiguous

In (1), lines 9 – 12, it is unclear what constitutes the correct “nutrient application” requirements. There is a reference to using “the most current state-recognized technical guidance” but it is unclear what that is or how a person knows what to use.

(What follows is the contents of a TCR from last month. It was not complied with and leads to the recommendation to object to the rule that is made immediately below the TCR.

TCR: In (2)(d), page 1 lines 32 and 33 and (5)(d), page 4 line 20, there is a reference to an “applicator” and a “technical specialist” respectively. I believe these terms refer to specific persons whose definition and qualifications are found in other rules (that are not a part of these rules). If this is so, then specify where the definitions or qualifications of an “applicator” and a “technical specialist” are found. If not then the terms are ambiguous and need definitions. As suggested earlier it would not hurt to have a definitions section where all these terms could be found.

Opinion: Object: Item 2 Ambiguous

In (2)(d) lines 32 and 33 the applicability of this rule extends to “a hired applicator who does not own or lease the land to a total of at least 5 acres per year.” This is ambiguous in two different ways..

The first ambiguity is that it is unclear who or what constitutes an “applicator.” I believe this term, along with “technical specialist” in (5)(d) refer to specific persons whose definitions and qualifications are found in other rules (that are not a part of these rules). But that is not stated and there is no definition for these terms in these rules. The terms are thus ambiguous and need definitions.

The second ambiguity is that it is unclear whether the 5 acres is owned by one person or are owned cumulatively by more than one person. In other words it is unclear whether the 5 acres is total acres applied by one applicator regardless of who or how many owned those acres or total acres owned by one landowner.

Opinion: Object: Item (5)(a), page 4 line 23 and (5)(d), page 5 line 16 Ambiguous

In (5)(a) and (d) the applicability of this rule extends to using “an appropriate technical specialist.” It is unclear who or what constitutes “an appropriate technical specialist.” I believe this term, along with “hired applicator” in (2)(d) refer to specific persons whose definitions and qualifications are found in other rules (not part of these rules). But that is not stated and there is no definition for these terms in these rules. The terms are thus ambiguous and need definitions.

Opinion: Object: Item (5)(a) and (e) Ambiguous

The structure of this paragraph is unclear. It would be more logical for (5)(e), page 4, to be moved to immediately after (a), page 3. Paragraph (5)(a) excludes the applications that are the subject of (e) and it would make more sense to have the application requirement for the exceptions to follow the paragraph where the requirement is excluded.

Opinion: Object: (5)(e), page 4 line 36 – Failure to comply with G.S. 150B-21.10 (last sentence) of the APA and make the requested technical change by changing “additions” to “editions.”

Opinion: Object: Item (6) page 5 Ambiguous

In a similar manner as the proposed objection above concerning the structure of that rule, the structure of this item makes the rule unclear. It would be easier to understand the compliance timetable in (6), page 5, if it were rewritten from the earliest deadline to the last. The agency should also add labels to them and give it an introduction. For example:

(6) COMPLIANCE: The following constitute the compliance deadlines for this rule:

(a) For proposed new application of residuals and septage … as of its effective date; [lines 19 – 21]

(b) For existing, ongoing application … requirements of this Rule; [lines 15 – 19]

(c) For all other applications with the exception of … Class A bulk … subject to this Rule ~~on and~~ after that date. [lines 11 – 15]

(d) Persons who fail to comply … (injunctive relief). [lines 21 – 23]

If this is not the intent of this rule, then the rule is unclear.

RRC STAFF COMMENT

Please Note: This communication is either 1) only the recommendation of an RRC Commission Counsel as to action that the attorney believes the Commission should take on the cited rule at its next meeting, or 2) an opinion of that attorney as to some matter concerning that rule. The agency and members of the public are invited to submit their own Opinions and recommendations (according to RRC rules) to the Commission.

AGENCY: N.C. ENVIRONMENTAL MANAGEMENT COMMISSION

RULE CITATION: 15A NCAC 02B .0264

COMMENT:

Opinion: Object: Item (1) , lines 10 and 11 Ambiguous

The timelines in this rule (and throughout the rules) is not always clear.

In (1) of this rule the purpose is stated “to achieve the initial goals set out in Rule 15A NCAC 02B .0262 within six to nine years (emphasis added). That seems to imply that the “initial goals” should be given at least six years. However the referenced rule in (7) states that those goals may be adjusted after five years. It should be noted that the goals in this rule were changed from “five to eight years” to “six to nine years,” which makes it unclear whether the two rules are supposed to be in agreement on the beginning timeframe. Also in (4), at the bottom of page one and the top of page 2, this rule implies that there can be further rule impositions if those subject to it do not attain their goal “within six years,” not “six to nine years.” While it appears the two rules can be harmonized by reading them to say that the goal is to reach the goals set in the first rule anywhere from six to nine years after the rule goes into effect, and in some specific cases, such as (4) of this rule, in six years, the agency can adjust them anytime after five years. If that is the intent, then the two rules need to more clearly express this. If that is not the intent then it is unclear what deadlines the rule imposes.

It is also not clear what the difference, if any, is between “initial goals” as used in line 10 of this rule and elsewhere, and “goals” as used in Rule .0262, which appear to be the “initial goals” referenced in this rule.

Opinion: Object: Item (4) , lines 33 and 34 Lack of Statutory Authority

In (4) this rule allows the division director to apply this rule to other persons not currently affected by this rule. That would constitute a new rule since it would then affect persons not currently affected by the rule. There is no authority to delegate that rulemaking power to anyone else.

Opinion: Item (4)(c)(viii), page 2 lines 16 and 17 Object -- Ambiguous

In (4)(c)(viii), page 2 line 16, it is unclear whether the combined weight category includes the animals in the categories (i) – (vii) or whether it is the combined weight of “any other livestock or poultry” (and not included above) that the application of this rule is intended to apply. If it is intended to apply to the items already listed then it needs to be made clear that it is, e.g. “either 5 or more horses or any number of horses with a combined weight …” (or similar language) that is the focus of this rule.

Opinion: Item (5)(b) , page 3 line 4 Object -- Ambiguous

The nitrogen goal in (5)(b) is unclear. The goals and timelines throughout these rules are unclear. The problem with timeline concerning the nitrogen and phosphorous goals has already been raised. That problem presents itself here and might be satisfied either here or in addressing other rules. It appears the timeline would require five or six years to achieve the nitrogen goal; it is not clear what the deadline is.

Opinion: Object: Item (7)(b)(i), page 5 lines 31 through 33 Ambiguous and Lack of Statutory Authority

In (7)(b)(i) the rule requires that methods developed by the Watershed Committee be submitted to the EMC for approval. It is unclear what standards the Commission shall use to approve these methods. If the standards are set outside rulemaking, there is no authority to do that.

Opinion: Object: Item (8)(a)(i) – (iv), page 8 Ambiguous

It is unclear whether “local” in this rule means a person is from a particular county or municipal government, or watershed or subwatershed subject to this rule. It is also unclear when applying it for the purpose of determining whether someone is eligible for inclusion in the membership of this committee whether it is domicile, ownership, work, or some other characteristic or combination of characteristics that determines whether a person is a “local” person.

Opinion: Object: Item (8)(b) , page 8 line 29 Ambiguous

In (8)(b) it is unclear what is meant by “jointly appoint.” It is not clear if that means that both officials must agree on each person over whom they have appointing authority or whether between the two officials, either individually or together, they will appoint the committee members.

RRC STAFF COMMENT

Please Note: This communication is either 1) only the recommendation of an RRC Commission Counsel as to action that the attorney believes the Commission should take on the cited rule at its next meeting, or 2) an opinion of that attorney as to some matter concerning that rule. The agency and members of the public are invited to submit their own Opinions and recommendations (according to RRC rules) to the Commission.

AGENCY: N.C. ENVIRONMENTAL MANAGEMENT COMMISSION

RULE CITATION: 15A NCAC 02B .0265

COMMENT:

Opinion: Object: Item (1) line 5 Object – Ambiguous

The meaning of “new development” is unclear. In (1) line 5 and elsewhere in this rule it is unclear what it is about development that must occur after the effective date of the programs to make that development “new development” and subject to these rules. Is it when plans are submitted, approvals given, permits issued, ground clearance begun, actual house construction started, or some other time? There is no definition for the term.

Opinion: Object: Item (3)(a)(i) Ambiguous or Unnecessary

(This is a staff comment that was not previously made.)

It is unclear to me in this portion of the rule whether there is a formula in this rule for establishing loading rates that will vary from “developable land” to “developable land” (page 1 line 36) within a watershed or whether there is a rate fixed by this rule and the formula is irrelevant. It is also unclear who must do the calculation, if such a calculation is required. If the formula and calculation is not required, then it is unnecessary.

The first part of the rule (at the bottom of page 1through line 1 of page 2) appears to set out a “calculation” and requires someone to make the calculation. But in the next part of this rule, beginning on page 2 at line 2, the rule sets “initial values.” If these values are the result (and the only possible result) of performing the calculation, then the formula and instructions are unnecessary since the agency can use any (non-arbitrary or capricious) formula it wants in setting the values that are then set in the rule. If the calculation would produce a different result, it is unclear why the agency sets “initial values,” and also which, the calculation or the formula, is to be applied.

Even if the two values, one established by formula and the other set in rule, agree, it is unclear why the two methods are set out. Only one is necessary: either set the value by rule or set the formula for establishing the value by rule.

Opinion: Object: Item (3)(a)(i) , page 2 lines 6 – 8 Ambiguous and Lack of Statutory Authority

Immediately above I recommend objecting to this section of the rule based on ambiguity on which applied: the formula or the values set in the rule.

Whether or not the commission objects to that portion of the rule it is unclear in these lines what approval standards the EMC shall use to approve the Division’s adjustment of the “initial [loading] values” as found in (3)(a)(i). If those standards are set outside rulemaking, there is no authority to do so.

Opinion: Item (3)(a)(ii), page 2 line 13 Object – Ambiguous

(This is a staff comment that was not previously given by me, although it was raised by Mr. McLawhorn.)

It is unclear what constitutes a “linear utility project” since there is no definition set out for this term in this or any other rule.

Opinion: Item (3)(a)(iv), page 2 lines 24 and 25 Object – Ambiguous

In (3)(a)(iv) it is unclear whether there needs to be a reference to a period of time, such as 24 hours, during which the “one inch of rainfall” may occur. It seems to me that the design for handling stormwater would depend largely on how quickly the rainfall accumulated.

Opinion: Item (3)(a)(iv), page 2 lines 25 – 29 Object – Ambiguous

(This is a staff comment that was not previously given by me, although it was raised by Mr. McLawhorn.)

It is unclear how this “guidance,” requiring certain methods of stormwater runoff treatment, is to be enforced. Since the agency has not incorporated this by reference, it is staff’s opinion they have no authority to enforce it. If they have no enforcement authority it is unclear what the affect of such a requirement would be.

There is split opinion among staff and others whether the agency could incorporate by reference, and therefore enforce, a document its own staff has produced. This counsel is of the opinion that if the document is fixed and unchangeable by anyone, as this one appears to be, it could be incorporated

Opinion: Item (3)(a)(vii), page 3 lines 35 - 37 Object – Ambiguous and Lack of Statutory Authority

In (3)(a)(vii) it is unclear what constitutes the approval standards the Division shall use to approve the local government offset options. If those standards are set outside rulemaking, there is no authority to do so.

TCR: In (3)(d), page 4 line 17, please change “Jordan watershed” to “the Jordan watershed.”

(This technical change request has not been previously made.)

Opinion: Item (3)(d)(v) , page 4 line 24 Object – Ambiguous

In (3)(d)(v) it is unclear what constitutes other “development-related requirements” in Rule .0104. In lines 16 – 23 the rule sets specific requirements in (i) – (iv) from that rule that are imposed. Then it states in (v) that “other development-related requirements” shall also apply. It is unclear what those requirements are.

Opinion: Item (4)(a), page 4 lines 33 – 36 Object – Ambiguous

(This is a staff comment that was not previously made.)

The analysis for this parallels the analysis in (3)(a)(iv).

It is unclear how this “guidance,” requiring certain methods of accounting for nutrient loading, is to be enforced. Since the agency has not incorporated this by reference, it is staff’s opinion they have no authority to enforce it. If they have no enforcement authority it is unclear what the affect of such a requirement would be.

RRC STAFF COMMENT

Please Note: This communication is either 1) only the recommendation of an RRC Commission Counsel as to action that the attorney believes the Commission should take on the cited rule at its next meeting, or 2) an opinion of that attorney as to some matter concerning that rule. The agency and members of the public are invited to submit their own Opinions and recommendations (according to RRC rules) to the Commission.

AGENCY: N.C. ENVIRONMENTAL MANAGEMENT COMMISSION

RULE CITATION: 15A NCAC 02B .0266

COMMENT:

Opinion: Item (1) line 13 Object – Ambiguous

It is unclear what is meant by “steady progress” in line 13. It is also unclear what the sanction for failure to make “steady progress” would be as opposed to the possible sanctions under the rules and authorizing statutes for a failure to enact or enforce the requirements of these rules.

Opinion: Item (1)(a) lines 23 and 24 Object – Ambiguous

It is unclear what constitutes “structural improvement” in line 23.

Opinion: Item (3) Approve

Staff has had some difficulty with this rule and did not explain his position on approving this particular part of the rule previously.

This rule requires towns, cities, and counties within the watershed to “develop stormwater programs” that are designed to reduce pollution from existing development. While the rule does not specify that governments must enact ordinances, that possibility exists and is perhaps implied since that might be the most effective or only way that government can effect any measurable change in the nitrogen and phosphorous loads coming from existing development.

The overarching question is the authority for the EMC to mandate stormwater management requirements to clean up waste coming from existing development that was free to develop under older sets of statutes, rules, and ordinances. Staff is of the opinion the agency has the authority.

There are two statutes staff is relying on for this opinion:

G.S. 143-214.5 gives the agency broad authority to impose requirements on governments to protect water supplies, especially critical water supplies. That includes the authority to require governments to enact programs and ordinances directed at achieving the EMC’s goals to protect the water supplies of the state to the standards set by the EMC. However there are limitations in that statute in the methods that can be used; the only controls allowed are density controls and performance-based alternatives to those density controls (or using a combination of the two). [it is unclear to me under the statute if the EMC might be allowed to utilize other controls if they were setting “management requirements that are more stringent than the minimum statewide water supply … requirements” (G.S. 143-214.5(b). But it is not necessary to make that determination, as I shall show shortly, if the agency has broader authority.]

G.S. 143-241.7 gives the agency authority to set requirements addressing the control of stormwater runoff. It is both more and less restrictive of the EMC’s rulemaking authority than the previously mentioned statute.

It is more restrictive in that it does not allow the agency to impose ordinance enacting requirements on local governments. It is solely up to the EMC to develop the rules that state and local government entities and landowners and developers must comply with in order to reduce the pollution that comes with such runoff. But it cannot require those local government entities to develop local rules and ordinances to deal with stormwater. It can allow those governments to do so, and approve those local programs, but it cannot require them to do so.

It is less restrictive in that under the mantel of stormwater rules the agency can impose arguably any land-use restrictions that can be justified as “protecting the surface waters of the state.” It is not limited to “density controls” and “performance based alternatives” that are the permitted controls in the water supply authorizing statute.

However, the stormwater statute in (a) authorizes the EMC to “utilize stormwater rules … to protect … water supply watersheds.” If this were simply a statement of fact, i.e., whatever stormwater rules are adopted by the EMC will invariably end up protecting the water supply, because stormwater will eventually drain into some water supply somewhere, then the language in (a) is meaningless since that would seem to be a given.

That language in the stormwater statute must have some meaning. The meaning is that any of the rules that are adopted to deal with stormwater can also be applied (or ‘bootstrapped’) under the water supply protection statute… which gives the EMC the additional authority to impose the requirement that local governments do whatever the EMC requires, including enacting enabling ordinances, to protect the water supplies.

Note well that if any individual component of a rule was not either designed to control stormwater runoff or framed as a density or performance control, then that rule would exceed the agency’s authority.

Opinion: Item (3)(a)(ii), page 3 lines 8 and 9 Object – Ambiguous

As in (1) of this rule it is unclear what is meant by “steady progress” in(3)(a)(ii). It is also unclear what the sanction for failure to make “steady progress” would be as opposed to the possible sanctions under the rules and authorizing statutes for a failure to enact or enforce the requirements of these rules.

Opinion: Item (3)(a)(iv), page 3 line 20 Object – Ambiguous

In (iv) it is unclear against what a “local government may credit” any excess reductions obtained over those required by other rules. These are reductions beyond what is required those other rules. Presumably the context would indicate they could be applied against this rule, but that is not stated. Given the magnitude and complexity of this rule it would seem that all aspects of the rules should be stated clearly.

Opinion: Item (3)(a)(vii), page 4 line 15 Object – Ambiguous

(This is a staff comment that was not previously made.)

In (3)(a)(vii) reference is made to an “accounting method” under “Sub-Item (4)(a).” There does not appear to be any “accounting” method in that portion of the rule and it is unclear what “accounting method” is referred to or whether the “accounting method” is actually something else.

Opinion: Item (4)(c), (d), (f) and (g) Object – Ambiguous or Lack of Authority

(This is a staff comment that was not previously made.)

It is unclear what standards the Division will use to approve the local government’s administrative (c) and reduction programs (f) and what standards the Commission shall use to approve those programs in (4)(d) and (g).

Opinion: Item (4)(j), page 6 lines 29 and 32 Object – Ambiguous

In (j) it is unclear what constitutes “at the earliest feasible date.”

Opinion: Item (4)(l) Object – Ambiguous and Lack of Statutory Authority

(The portions of these comments in the first two paragraphs are new.)

There is no authority to change certain critical standards without going through rulemaking. Even if there were the authority to change them, there are no standards set in the rules, or at the least it is unclear what those standards are, to give the director guidance or those subject to the rules some predictability or basis to challenge the director’s decision.

It is also possible that the timeline in the rule is unclear. That is especially possible given the other problems with the timelines in this rule. The commission should object to the timeline in this rule and then determine, after the agency makes changes to satisfy various problems with the timelines, whether this one needs any further correction.

In (4)(l) the division is required to review certain methods and values and then the director shall approve the changes. The five year minimum period for review seems in keeping with the other timelines in these rules, although in some cases it appears that a longer timeframe may be acceptable. For example Rule .0262(7) (page 5/7 of the rule) refers to adjustment of values “after at least five years,” not before. The more serious problem is at the end of (4), page 7 lines 4 – 6 where the director “shall approve changes” to “the accounting method or reduction assignments.” These are critical methods and values, set in the rules now.

TCR: In (5), page 7 line 13 please verify the reference to “Sub-item (4)(b).” it appears to me that it would be more appropriate to refer to (4)(c) or some other sub-item.

(This is a new request for technical change that was not previously made.)

RRC STAFF COMMENT

Please Note: This communication is either 1) only the recommendation of an RRC Commission Counsel as to action that the attorney believes the Commission should take on the cited rule at its next meeting, or 2) an opinion of that attorney as to some matter concerning that rule. The agency and members of the public are invited to submit their own Opinions and recommendations (according to RRC rules) to the Commission.

AGENCY: N.C. ENVIRONMENTAL MANAGEMENT COMMISSION

RULE CITATION: 15A NCAC 02B .0267

COMMENT:

Opinion: Item (2) Object – Ambiguous and Lack of Statutory Authority

It seems to me that (2)(b), the definition of “archaeological activities,” is either ambiguous or outside the agency’s rulemaking authority. The term appears to be used in only one place in the rule. On page 11 in the third box from the bottom “archaeological activities” are exempt from regulation under the restrictions that are imposed on activities within the riparian buffer zone.

These activities are defined in terms, not of what constitutes archaeology, but in terms of who is doing it. To the best of my knowledge in the state of North Carolina one does not have to be a registered archaeologist to engage in the practice of archaeology or even to call yourself one. In effect this rule imposes that registration requirement and thus sets a job qualification to engage in that practice. The agency has cited no authority to set this job qualification.

The agency defined the term using only a title of who does the practice, not in terms of the practice itself, and this exceeds their authority. There is no actual definition of what constitutes this type of activity, and the definition supplied is unclear.

Note that staff is of the opinion that no definition is required, only that this definition itself is not clear. The term itself has a certain common sense definition, a dictionary definition, and most likely a common law definition. In this particular case these could be sufficient, without further defining it in the rule. However, if the agency wishes to restrict this activity or have more control over the activity that is allowed or forbidden, then the agency needs to provide a definition in terms of what is allowed or forbidden.

TCR: In (2)(c), page 2 line 11 the formatting of the deletion of the errant apostrophe following “thereof” is incorrect. Also the word “of” before “thereof” should be deleted.

(This is a request for technical change addressing both a change that was previously requested and a new request.)

Opinion: Item (2)(p) , page 4 lines 15 through 24 Object – Ambiguous

In (2)(p) it is unclear what the definition of “stream” is until you reach the end of the definition for “stream restoration” and would not likely be found if you were simply looking for “stream.” The definition of “stream” should be a separate definition, not part of the definition of “stream restoration.”

TCR: In (2)(r), page 4 line 27, there are two errant registered trademark symbols inserted into the rule, probably when the rule was undergoing other technical changes.

Opinion: Item (4)(c)(iii) , page 6 lines 1 – 5 Object – Ambiguous, Lack of Statutory Authority

It is unclear what the standards are in (4)(c)(iii) for approving “other more accurate mapping” if they are not already found within the rule. However the rule does not make it clear they are found in the rule and implies they may be set by either the division or the commission outside the rule. There is no authority to set those standards outside rulemaking.

Opinion: Item (4)(h) , page 6 line 26 Object – Ambiguous

In (4)(h) it is unclear what the term “development” means or includes. There is no easily found definition for that term in these rules. Yet that is a term used throughout these rules and many of the rules apply different requirements depending on whether the development is new or existing.

NOTE WELL:

In (6)(b) page 8 the agency has added back to the sub-item (iii) and (iv), lines 17 – 31. These were included in the original notice of text and, apparently, inadvertently deleted from the final rule that the EMC adopted. These are two additional exemptions that could qualify a development as “existing, ongoing activity” that would not be considered a “change of use” requiring the property to comply with the requirements pertaining to existing riparian buffers.

On other occasions we have allowed agencies to make similar restorations (or deletions) when they were discovered prior to RRC review. Occasionally that has happened when the RRC has either requested a technical change or raised an objection. That has not been the case here, although staff does believe the agency could restore the language with RRC approval.

The issue the commissioners would need to decide would be whether this constituted a substantial change requiring either republication or restoring the deletion. Staff is of the opinion that it does not constitute such a change and should be permitted.

Opinion: Item (7)(a)(i) and (ii), page 9 Object – Ambiguous

In (7)(a)(i) it is unclear where to measure the beginning of the landward limit of the buffer when both “rooted herbaceous vegetation” and “the top of the bank” are separate and identifiable beginning points.

In (7)(a)(ii) it is unclear where to measure the beginning of the landward limit of the buffer when both “rooted herbaceous vegetation” and “the edge of the surface water” are separate and identifiable beginning points.

Opinion: Item (8)(c) Object – Lack of Statutory Authority

(This is a staff comment that was not previously made.)

The addition of a prohibition against “new stormwater conveyances” through a buffer appears to be a substantial change. It produces an effect that could not have been “reasonably expected” base on the original notice of text unless you believed that anything, absolutely anything and everything concerning water, construction, land, and even your pets was involved in these rules and up before the EMC.

Opinion: Item (9) Object – Ambiguous

Staff is concerned that there are a number of places in the Table of Uses spread out on pages 11 – 23 where the “X’s” are not correctly marking the apparent spot where they belong or do not appear to be in any column. There are also a number of places where the * footnote indicating how to qualify for each designated use does not always end up on the bottom of the page or ends up in two places on a page.