ISSN 0549-799X Number 381 January-March 2013 State’s ability to plan for water supply could be affected N.C. Supreme Court says water authority owes hydroelectric producers compensation for takings under Fifth Amendment by Jeri Gray On December 14, 2012, the North Caro- eminent domain in North Carolina, listing Property rights lina Supreme Court decided that it had the entities to whom the power of eminent and riparian rights erred in agreeing to review a unanimous domain is delegated, the purposes for Exactly what the term “property rights” Appeals Court ruling in the case of L & S which they can exercise eminent domain, comprises is the subject of long-standing Water Power, Inc., et al v Piedmont Triad the procedures they must follow and how disagreement in the United States. In L&S Regional Water Authority (PTRWA). damages are to be measured. In North Water Power et al. v. PTRWA, the Ap- This leaves standing the Court of Appeals Carolina, there are two types of “condem- peals Court decided that persons owning ruling that PTRWA owes downstream nors”: private (such as public utilities) and land bordering rivers and streams have a hydroelectric producers compensation for public (such as local governments). property right to water flowing by their permanently reducing flow in the Deep In 2006 in the wake of the U.S. land, as opposed to a usufructory right, or River and thereby taking their property Supreme Court decision in Kelo v. City a right to use the water. Further, the Ap- rights (background on the case can be of New London, the General Assembly peals Court decided that riparian owners read in the October-December 2012 issue amended the statutes governing eminent have the right to water flow undiminished of the WRRI News. domain to delete provisions that expressly by upstream use as opposed to water flow The decision turns on the Appeals allowed taking of private property for that may be diminished by “reasonable Court application of the “takings clause” economic development. House Bill 8 use” of riparian owners upstream. Both of the Fifth Amendment to the U.S. Con- under consideration in the current General of these decisions are counter to previous stitution and its interpretation of North Assembly, would put before voters a pro- interpretations of riparian rights in North Carolina’s common law doctrine of ripar- posed amendment to the N.C. Constitu- Carolina. ian rights and what constitutes property tion to provide that “private property shall rights. not be taken by eminent domain except Consequences of for a public use” and to provide that any the decision Eminent domain party can ask for a jury to determine the A number of entities with the power of The takings clause of the Constitution amount of “just compensation.” continued on page 2 says that if an entity that possesses the au- thority of eminent domain takes property for a “public use” through condemnation, it owes the property owner “just compen- In this issue January-March 2013 sation.” Therefore, this decision applies Page only to entities that exercise eminent Electric utilities under pressure on coal ash ponds 2 domain. Scientists investigate impacts of water discharges from coal The federal government and state ash ponds 5 governments hold the power of eminent Environment-related legislation introduced in the N.C. General domain. States can delegate this power to Assembly 7 other entities. Chapters 40A and 136 of USGS gage infrastructure supports array of critical programs 9 the N.C. General Statutes govern use of 2013 WRRI Research Awards 9 Upcoming events 10 January-March 2013 WRRI NEWS 2 N.C. Supreme Court continued from page 1 eminent domain submitted friend-of-the- doctrine of riparian rights will continue court briefs to the Supreme Court in L&S to play a role in water allocation policy, Water Power et al. v. PTRWA, offering whether it is well suited to modern cir- their views of the consequences of the Ap- cumstances or not.” peals Court decision for them (see WRRI However, Hanchey said that because ISSN 0549-799X News). In a January workshop organized the decision did place riparian rights with- Number 381 by the N.C. Bar Association Foundation, in the scope of condemnation authority, it January-March 2013 attorneys specializing in North Carolina suggests that local governments could use This electronic newsletter is published by water law (of which there are said to be that authority to purchase necessary ripar- the Water Resources Research Institute only a few), offered additional insight into ian rights at reasonable prices by avoiding of the University of North Carolina. It is financed in part by the Department possible consequences of this departure impact to highest value uses. “It is an of the Interior, U.S. Geological Survey, from accepted interpretations. unfortunate aspect of PTRWA’s situation as authorized by the Water Resources According to Matthew Hanchey of that it has impacted a string of facilities Research Act of 1964. You may sign up the law firm Hunton & Williams (which that are essentially in the business of to receive the electronic newsletter via an electronic listserv by represented PTRWA in the case), the deci- monetizing river flow,” he said. sending an email to sion seems to require entities with eminent [email protected]. domain to pay for water withdrawals Public water systems Richard Whisnant of the UNC Institute of WRRI that private riparian owners can take for NC State University, Box 7912, Government and co-author of the Water free. Further, said Hanchey, because the Raleigh, NC 27695-7912 Allocation Study for the General Assem- decision frames riparian rights as Consti- [email protected] bly’s Environmental Review Commis- http://www.ncsu.edu/wrri/ tutionally protected property rights, it does sion, said that the decision in L&S Water not recognize the modification of common WRRI STAFF Power v. PTRWA demonstrates that North law riparian rights by statute or admin- Carolina courts are not well situated for Susan White istrative agency action. Therefore, the resolving water conflicts and that unpre- Director decision calls into question the ability of 919-515-2455 dictability will continue to result if such the General Assembly to modify existing conflicts are left to the courts. He said David Genereux water rights through legislation, imply- that because North Carolina water law is Associate Director for Research ing that the legislature cannot pass laws 919-515-6017 sparse, the courts have to go back to very to allocate water in areas where water use old cases for precedent, while society, sci- Mary Beth Barrow conflicts arise. Business Officer ence and policy have moved forward. Hanchey also said that while the 919-513-1152 “The doctrine of natural flow had to decision might seem to adversely affect give way for dams and mills to operate, Nicole Saladin Wilkinson municipal water suppliers, these entities Coordinator for Research and Outreach so the courts developed the doctrine of were probably already at risk in riparian 919-513-1216 reasonable use,” he said. “This decision rights cases since case law had established Wendy Cox runs counter to the course of law in the that municipal water supply is not a “rea- Accounting Technician United States.” sonable use.” He pointed out that if the 919-513-7321 Whisnant said that—added to earlier Court of Appeals had ruled that municipal Anna Arnold rulings that taking water out of a stream water supply is a reasonable use, but that Communications and a reduction in flow is not reasonable, it and piping it offsite for drinking or Program Coordinator 919-513-1203 could have resulted in compensation be- industrial uses is not a riparian right—this ing paid to the plaintiffs and at the same decision places public water systems in Nancy Simpson time corrected a pre-existing problem for the position of the frog in the pot of water Workshop Assistant 919-515-2815 public water suppliers and modernized heating up. the riparian rights doctrine in a way more “The General Assembly will have to Jeri Gray consistent with state policy on water sup- act to straighten this out somehow,” he Rhett Register said. Newsletter Editors ply planning. 919-513-2772 “In short,” said Hanchey, “I think this case has ensured that the venerable 3 WRRI NEWS January-March 2013 Electric utilities under pressure on coal ash ponds Across the United States, there are on the public’s radar screen until a authority, it found—not the 14 they upwards of 2,000 coal combustion few days before Christmas 2008 when expected—but 50 ash ponds large residuals (fly ash, bottom ash, boiler a huge coal ash disposal pond failed enough that they must be inspected slag and gypsum) disposal sites, at a TVA coal-fired power plant near and monitored for structural integrity. including hundreds of wet ponds with Kingston, Tennessee. The failure The EMC also learned that its an average size of 149 acres. Accord- spilled more than 5.4 million cubic regulatory authority regarding water ing to the U.S. EPA, coal-fired power yards of coal ash slurry into the Emory quality concerns linked to coal ash plants produced more than 136 million River, covering nearly 300 acres with ponds comes through state law gov- tons of coal combustion residuals (also sludge, destroying three homes, and erning groundwater protection and called coal ash) in 2008. About 60% damaging others. federal Clean Water Act regulation of goes into storage and disposal sites, Field investigations and labora- discharges to land and surface waters. and about 40% is used “beneficially” tory studies by EPA and independent Discharges to surface waters from de- for construction and geotechnical ap- scientists documented leachable con- watering of coal ash sludge in ponds plications. taminants including arsenic, selenium, are permitted under National Pollut- Coal ash managed on site at power boron, strontium and barium in the ant Discharge Elimination System plants is typically sluiced to impound- spilled wastes. Field investigations by (NPDES) regulations, which currently ments where the ash settles to the Dr. Avner Vengosh and colleagues at have few limits applying to coal ash bottom and clear water from the top is Duke University found high levels of pond effluent. discharged or sometimes recycled. The these toxics in areas with restricted settled ash may be dredged for benefi- water exchange and in sediments and EPA efforts to regulate cial use or left in place. water filling spaces among sediments coal ash A 1980 amendment to the federal According to the Electric Power downstream of the spill. Resource Conservation and Recovery Research Institute, precise characteris- Regulatory attention Act (RCRA) exempted coal ash from tics of coal ash depend upon the type Regulatory attention then focused regulation under the act, directed EPA and source of coal and the reactions on the structural stability of coal ash to assess the waste, submit a formal that occur during combustion of the ponds. EPA undertook to identify the report to Congress, and make a deter- coal and subsequent cooling of the number and location of all coal ash mination as to whether or not coal ash flue gas. In general about 90% of the surface impoundments in the country should be regulated as a hazardous mineral content of coal ash is oxides and to investigate structural hazards waste under RCRA Subtitle C. of silicon, aluminum, iron, and cal- associated with the ponds. cium. Magnesium, potassium, sodium, In 1988, EPA delivered Report to titanium, and sulfur account for about In North Carolina, coal ash ponds Congress on Wastes from the Combus- 8% of the mineral component, while had been below the regulatory ra- tion of Coal by Electric Utility Power trace constituents including toxics dar as well. Following the Kingston Plants. In the report, the Agency said such as arsenic, cadmium, lead, mer- pond failure, the N.C. Environmental that while coal combustion residuals cury, and selenium, together make up Management Commission (EMC) contain a number of toxic substances, less than 1%. Coal fly ash (lightweight began asking questions of staff of including arsenic, lead, chromium, and particles removed from flue gas) con- the Department of Environment and selenium, EPA’s leaching studies indi- tains significant levels of boron, which Natural Resources about its authority cated that the toxics in leachate did not is potentially phytotoxic if it is in a to regulate coal ash ponds. They found rise to RCRA levels and that, there- soluble state. that coal ash ponds were exempt from fore, coal ash should not be regulated the Dam Safety Act and therefore not under subtitle C but under Subtitle D, Management and disposal of coal inspected by the Dam Safety Program which governs non-hazardous wastes ash is currently exempt from federal for structural integrity. and would put states’ solid waste pro- regulation, and state regulation is grams in charge of regulation. inconsistent or, in some cases, non- The General Assembly acted in existent. 2009 to remove the exemption, and In 2000 EPA issued a regulatory when the Dam Safety Program began determination proposing to regulate Public attention surveying utilities to identify coal ash coal ash disposal in impoundments Coal combustion residuals were not ponds that would be brought under its continued on page 4 January-March 2013 WRRI NEWS 4 Electric continued from page 3 * In December 2012 environmen- and landfills under Subtitle D. The regulate coal ash under RCRA. tal groups in South Carolina filed suit Agency did conclude, however, that Environmental groups against the state-owned Santee Coo- because the volume of coal residuals sue to force action per electric utility seeking clean up being disposed of in the United States However, with EPA unlikely to act in of coal waste ponds at the Grainger was so large and the size of disposal the absence of a permanent adminis- power station on the Waccamaw units—many unlined—was so large, trator but Congress likely to introduce River at Conway. that some metals (particularly arse- new legislation prohibiting the agen- * In July 2012, after public inter- nic) could leach from impoundments cy from regulating the residuals under est law firms filed NOI against First and landfills at levels of potential Subtitle C (bills to do so had been Energy for contamination caused by concern. introduced in 2011), environmental its Little Blue Run coal ash pond, the By 2004, EPA had gathered evidence groups across the country are taking Pennsylvania Department of Envi- that 75% of coal ash ponds in use were the initiative under existing laws and ronmental Protection filed in federal 25 years old or older and that 62% were regulations to deal with what they see court a lawsuit and consent decree in unlined, making groundwater contamina- as a major threat to human health and which the utility agreed to submit a tion more likely. Under pressure from the ecosystem. environmental groups, EPA also inves- plan to close the plant by the end of tigated incidents of groundwater and * In November, 2012, environ- 2016, pay a fine of $800,000, sup- surface water contamination by coal ash mental groups petitioned the N.C. ply 21 households with hook-ups to ponds. By the time of the Kingston pond EMC to issue a declaratory ruling municipal water systems, and conduct failure, EPA had documented 27 cases of that would require electric utilities to an environmental impact study on the proven damages to surface and ground- clean up groundwater contamination area. water and 40 cases of potential damage from old coal ash ponds regardless of Recent suits have also been filed associated with the “improper” manage- how far the contamination has spread. against Mirant Mid-Atlantic in Mary- ment of coal ash. The EMC declined to make the rul- land and Midwest Generation in Il- Following these and other studies ing, saying that DENR is implement- and the Kingston pond failure, EPA re- linois. In addition groups of residents examined its thinking about regulation of ing groundwater rules correctly. The living near coal ash disposal units coal ash. In 2009, the agency issued draft groups have appealed that decision in have launched letter writing cam- proposed regulations for coal ash as a Wake County Superior Court. paigns to EPA, Congress and electric utilities, alleging health effects and hazardous waste under RCRA Subtitle C. * In February 2013, the same After a flood of negative comments from demanding closure and clean up of groups filed a Notice of Intent (NOI) the electric utility industry and others, the coal ash ponds. to sue Progress Energy for violations agency revised its regulatory determina- tion and in 2010 published proposed rules of the Federal Clean Water Act at its Back where it all began that laid out two alternatives: Skyland power plant at Asheville, In the wake of the Kingston debacle, (1) regulation as hazardous waste alleging that seepage from coal ash the board of TVA adopted a 10-year under Subtitle C, including Subtitle C ponds there is contaminating the plan for conversion of wet ash im- permitting, cradle-to-grave regulation, French Broad River with a number poundments to dry systems through- national standards for new treatment and of toxic substances. The groups also out its fleet of coal-fired plants. The disposal facilities, and retrofitting or clos- filed NOI to sue the TVA under the federal utility has released an as- ing of unlined ponds within 5 years, or Clean Water Act for ongoing coal sessment saying that the cost will be (2) regulation as non-hazardous waste contamination at its Colbert between $1.5 billion and $2 billion. A waste under Subtitle D, which would Fossil Plant. 2009 analysis by EOP Group put the establish national standards for ponds and cost of phasing out ash management landfills and require retrofit or closure of * A similar NOI filed by the ponds industry wide over 20 years at unlined ponds but leave implementation Catawba Riverkeeper Foundation $39 billion. The report also says that and enforcement up to states. with South Carolina Electric & Gas in the cost of conversion could lead to EPA held eight public hearings and 2012 resulted in a settlement in which closure of small coal-fired plants and took hundreds of comments but has not SCE&G agreed to remove all coal ash plants with limited remaining useful yet promulgated final rules. In April from ponds at its Wateree power plant life, forcing replacement of more than 2012, eleven environmental groups filed southeast of Columbia and recycle or four percent of all electricity gener- suit to compel EPA to promulgate rules to place it in lined landfills. ated in the United States. 5 WRRI NEWS January-March 2013 Scientists investigate impacts of surface water discharges from coal ash ponds Most of the legal action brought by of effluents discharged from coal the reference lake. Many of the environmental groups discussed in ash settling ponds and the impact same constituents were elevated in the previous article focus on ground- on associated waterways in North waters downstream of discharges water contamination from old, Carolina. (Vengosh, Avner; Heileen as well. Even when discharges ac- unlined coal ash ponds. However, Hsu-Kim; Laura Ruhl; Gary Dwyer; counted for less than one percent permitted surface water discharges Grace Schwartz; Autumn Romanksi; of the natural water flow, concen- from these impoundments may pose and Daniel Smith. (2012). The Impact trations of many constituents were an even greater threat. of Coal Combustion Residuals on elevated. The calculated overall One of the most notorious the Quality of Water Resources in discharge of boron was 278 metric documented cases of environmental North Carolina. Report No. 414 tons per year. For arsenic, dis- damage from coal ash pond discharge of the Water Resources Research charge was 0.7 metric tons and for occurred in North Carolina. The case Institute of The University of North selenium, 0.8 metric tons. is documented in the 2007 EPA report Carolina. http://www.lib.ncsu.edu/ Analysis of shallow pore water Coal Combustion Waste Damage resolver/1840.4/8145) extracted from bottom sediments Case Assessments and by articles in From August 2010 to Febru- revealed elevated levels of iron, scientific journals by Dennis Lemly, a ary 2012, Duke University Profes- manganese, strontium, arsenic, fisheries scientist with the U.S. Forest sor Avner Vengosh, colleagues and molybdenum, antimony, and Service. cooperators collected more than 300 vanadium that were significantly Belews Lake in Stokes, Rocking- samples of coal ash pond effluent, higher than those of the overly- ham, Guilford, and Forsyth coun- cooling water effluent and surface ing bottom water. These trace ties was impounded in the 1970s to water and pore water from lakes and elements can be recycled through serve as a cooling reservoir for Duke rivers receiving effluents from power adsorption on suspended particles Power’s Belews Creek Steam Station. plants. They measured the concentra- and release to deep surface water From 1974 to 1986, the lake received tions of major and trace elements in or pore water in bottom sediments discharges from a 350-acre ash pond. 76 coal ash pond effluent samples, during periods of thermal water According to a 1997 article by Lemly, 129 surface water samples from lakes stratification and induced anoxic the discharge contained 150-200 µg/L and rivers from different downstream conditions, thus causing contami- of selenium. The toxicant bioaccumu- and upstream (background) sites, and nant accumulation. lated in the aquatic food chains and 98 pore water samples extracted from At power plants where flue gas essentially wiped out fish life in the the lake sediments. desulfurization (FGD) material is lake. Lemly reported that a decade entrained into ash pond wastewa- after Duke switched to a dry-ash In general the investigators ter, the effluent has significantly handling system, elevated selenium found: higher concentrations of selenium, residues and associated biological ef- calcium, magnesium, boron, and fects in fish were still present, primar- Cooling water effluents sampled chromium compared to outfalls ily due to selenium in the sediment- were not enriched in any constitu- with only ash pond water or cool- detrital food pathway. ents compared to their upstream ing water disposal. At plants with Among the 85 damage case as- waters and the reference lake no FGD system, but with wet ash sessments in its 2007 report, EPA also (Jordan Lake). disposal systems effluents had included as a proven damage case, Overall the coal ash pond ef- higher concentrations of arsenic, selenium effects on fish at Hyco Lake fluents were enriched in many vanadium, antimony, lithium, thal- in North Carolina. constituents (calcium, magnesium, lium and molybdenum strontium, lithium, boron, vanadi- WRRI-sponsored research on Following is information relative um, chromium, selenium, molyb- pond discharges to specific sampling locations: denum, arsenic and thallium) com- Recently completed research funded pared to their upstream waters and by WRRI has focused on the quality continued on page 6 January-March 2013 WRRI NEWS 6 Scientists continued from page 5

Hyco Lake (Person County) re- sampled in summers of 2010 and The researchers point out that air ceives average ash pond discharge 2011. Mountain Island Lake pro- quality regulations requiring capture of 11 million gallons per day vides drinking water for residents of atmospheric pollutants by instal- (MGD) of effluent from Progress of Charlotte, as well as Mount lation of flue gas desulfurization Energy’s Roxboro Steam Station. Holly and Gastonia. In 2011, scrubbers has resulted in a trade-off The investigators sampled this dis- arsenic concentration of 92 µg/L between cleaner air and significant charge monthly over the year-long in coal ash effluents exceeded the enrichments of contaminants in solid study. Cooling water is blended EPA drinking water standard of 10 wastes and wastewater discharged with pond effluent, significantly µg/L. from power plants. They also point out that as regulatory agencies reducing contaminant concentra- Lake Wylie (Gaston, Mecklenburg encourage power plants to conserve tions but because of the lake’s and York, SC, counties) and the water by installing recycled cool- relatively small size, power plant Catawba River receive an aver- ing water systems rather than once- withdrawals, and longer residence age discharge of 15 MGD of ash through systems, less dilution will time, ash pond discharge has a pond effluent from Duke’s Allen occur and the result could be greater major effect on water quality. Bo- Steam Station. The discharge was concentrations of contaminants in ron concentration was determined sampled once in summer 2011. receiving waters. to be 958 µg/L, compared to the Lake Wylie is a drinking water upstream concentration of 3 µg/L. source for Belmont and Rock Hill, EPA to address coal pond Studies have suggested ecological SC. concerns when the boron concen- effluents High Rock Lake (Davidson and tration exceeds 1,000 µg/L. In a study completed in 2009, EPA Rowan counties) receives an examined toxic substances in waste- Mayo Reservoir (Person County) average discharge of 4 MGD of water discharges to surface water receives an average of 7 MGD pond effluent from Duke’s Buck from coal ash ponds and documented effluent from Progress Energy’s Steam Station. The discharge was 70 incidents of environmental im- Mayo Steam Station. It was sam- sampled once in summer 2011. pacts from coal combustion waste- pled monthly for a year. Yearlong Belews Lake (Stokes, Rocking- water. EPA determined that current average selenium concentration ham, Guilford, and Forsyth coun- NPDES effluent guidelines should exceeded the 5 µg/L EPA Chronic ties) and the Dan River receive an be revised because of the high level Criterion Concentration (CCC) for average discharge of 9 MGD of of toxics in the discharges and the aquatic life. Several samples were pond effluent from Duke’s Belews expectation that these discharges will almost 4 times the CCC limit. Creek Steam Station. It was increase significantly in the next few Lake Norman (Catawba, Iredell, sampled once in summer 2011. years as new air pollution controls are Lincoln and Mecklenburg coun- The French Broad River and Lake installed. ties) receives an average discharge Julian (Buncombe County) receive Under a consent decree settling 8 MGD of ash pond effluent from an average discharge of 3 MGD a suit by environmental groups, EPA Duke Energy’s Marshall Steam of pond effluent from Progress has announced its intention to begin Station. Lake Norman supplies Energy’s Asheville Steam Sta- a rulemaking to address wastewaters drinking water to Lincoln County, tion. The discharge was sampled from coal ash ponds and has provided Iredell County, Mooresville, Char- once in summer 2011. Arsenic its regions permitting guidelines to lotte, Davidson and Huntersville. concentrations of 44.5 µg/L were assist states in establishing permit The effluent was sampled once in above the EPA drinking water requirements until effluent limitations summer 2011. standard of 10 µg/L; selenium are revised in 2014. Mountain Island Lake (Gaston and concentrations were over 17 times Mecklenburg counties) and the the Chronic Criterion Concentra- Catawba River receive an average tion for aquatic life; and antimony, discharge of 4 MGD of ash pond cadmium and thallium concentra- effluent from Duke’s Riverbend tions exceeded other human and Steam Station. Discharge was aquatic life benchmarks. 7 WRRI NEWS January-March 2013 Environment-related legislation introduced in the N.C. General Assembly The regular session of the 2013-2014 North Carolina General Assembly convened on January 9. Public bills must be filed in the House by April 17 and in the Senate by March 28. Crossover date is May 16. Following is a list of environment- related legislation introduced as of February 15.

S 10 AN ACT ESTABLISHING THE GOVERNMENT REDUCTION AND EFFICIENCY ACT OF 2013 Eliminates certain boards and commissions, including the Legislative Commission on Global Climate Change. Terminates upon ratification of bill the terms of all currently serving members of the Coastal Resources Commission, Environmental Management Commission, Public Utilities Com- mission, Wildlife Resources Commission, and N.C. Lottery Commission. Provides for appointment of new members. Terminates any member of the Board of Elections who has served more than three four-year terms. Changes number of members and qualifications of members of various boards and commissions. Provides that the governor will appoint the chairman of the State Board of Education. Abolishes seats of Special Superior Court Judges, except for three seats designated as business court judges. Provides that the Board of Transportation is ex officio the Authority Board of the North Carolina Turnpike Authority. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S10v3.pdf

S 24 AN ACT TO AMEND THE GAMELAND BUFFER REQUIREMENT APPLICABLE TO CERTAIN NEW SANITARY LANDFILLS. Reduces to 500 feet the separation between a sanitary landfill and a state gameland owned and operated by theWildlife Resources Commission under specific circumstances. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S24v1.pdf

S 32 (=H 74)) AN ACT TO PROVIDE FOR THE PERIODIC REVIEW AND EXPIRATION OF RULES. Provides that unless re- adopted, permanent rules expire on specific dates. Rules under Title 15A of the N.C. Administrative Code, Environment and Natural Resources, are to expire Dec 31, 2017. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S32v1.pdf

S 34 AN ACT TO ELIMINATE OBSOLETE BOARDS AND COMMISSIONS, AS RECOMMENDED BY THE JOINT LEGISLA- TIVE ADMINISTRATIVE PROCEDURE OVERSIGHT COMMITTEE. Among others, provides that the National Heritage Area Designation Commission shall terminate July 1, 2013. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S34v1.pdf

S 36 APA Technical Clarifying Changes (short title). Among other things, modifies the requirements for notice of the proposed text of a rule to eliminate the procedure by which a person can object to a proposed rule and the requirements for subjecting a proposed rule to the legislative review process. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S36v1.pdf

S 58 AN ACT TO PROVIDE ADDITIONAL FUNDING FOR DREDGING OF THE STATE'S SHALLOW DRAFT INLETS. Establishes a Shallow Draft Inlet Dredging Fund to be used for dredging projects in coastal inlets to maintain navigability and safety. Provides that the Wildlife Resources Commission shall transfer on a quarterly basis at least fifty percent (50%) of each one-year cer- tificate of number fee and at least fifty percent (50%) of each three-year certificate of number fee collected to the fund. Sets fees based on vessel length and provides that the Wildlife Resources Commission shall transfer at least $10 of each title fee to the Dredging Fund quarterly. Projects funded by this Dredging Fund must be cost-shared with non-State dollars on a one-to-one basis. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S58v1.pdf

S 76 AN ACT TO (1) AUTHORIZE THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES TO ISSUE PER- MITS ON OR AFTER MARCH 1, 2015, FOR OIL AND GAS EXPLORATION AND DEVELOPMENT ACTIVITIES IN THE STATE, INCLUDING THE USE OF HORIZONTAL DRILLING AND HYDRAULIC FRACTURING TREATMENTS FOR THAT PURPOSE; (2) DIRECT THE MINING AND ENERGY COMMISSION TO STUDY DEVELOPMENT OF A COMPREHENSIVE ENVIRONMENTAL PERMIT FOR OIL AND GAS EXPLORATION AND DEVELOPMENT ACTIVITIES USING HORIZONTAL DRILLING AND HYDRAULIC FRACTURING TREATMENTS; (3) MODIFY APPOINTMENTS TO THE MINING AND ENER- GY COMMISSION; (4) MODIFY PROVISIONS IN THE OIL AND GAS CONSERVATION ACT CONCERNING THE MINING AND ENERGY COMMISSION'S AUTHORITY TO SET "ALLOWABLES"; (5) ELIMINATE THE REGISTRATION REQUIRE- MENTS FOR PERSONS CONDUCTING LANDMEN ACTIVITIES IN THE STATE; (6) AMEND THE STATUTE GOVERNING SUBSURFACE INJECTION OF FLUID; (7) PROVIDE A TAX FOR THE SEVERANCE OF ENERGY MINERALS FROM THE SOIL OR WATER OF THE STATE, REPEAL OUTDATED OIL AND GAS TAX STATUTES, AND AUTHORIZE THE SUSPEN-

continued on page 8 January-March 2013 WRRI NEWS 8 Environment-related continued from page 7

SION OF PERMITS FOR FAILURE TO FILE A RETURN FOR SEVERANCE TAXES; (8) APPROPRIATE MONIES FROM THE MINERAL INTEREST FUND TO THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES TO OPERATE THE MINING AND ENERGY COMMISSION AND FOR RELATED EXPENDITURES; (9) ASSIGN FUTURE REVENUE FROM ENERGY EXPLORATION, DEVELOPMENT, AND PRODUCTION OF ENERGY RESOURCES IN ORDER TO PROTECT AND PRESERVE THE STATE'S NATURAL RESOURCES, CULTURAL HERITAGE, AND QUALITY OF LIFE; (10) ENCOURAGE THE GOVERNOR TO DEVELOP THE REGIONAL INTERSTATE OFFSHORE ENERGY POLICY COMPACT; (11) AMEND THE ENERGY POLICY ACT OF 1975 AND THE ENERGY POLICY COUNCIL; AND (12) DIRECT THE MEDICAL CARE COMMISSION TO ADOPT RULES AUTHORIZING FACILITIES LICENSED BY THE DEPARTMENT OF HEALTH AND HU- MAN SERVICES TO USE COMPRESSED NATURAL GAS AS AN EMERGENCY FUEL. http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S76v2.pdf

H 8 AN ACT TO AMEND THE NORTH CAROLINA CONSTITUTION TO PROHIBIT CONDEMNATION OF PRIVATE PROP- ERTY EXCEPT FOR A PUBLIC USE, TO PROVIDE FOR THE PAYMENT OF JUST COMPENSATION WITH RIGHT OF TRIAL BY JURY IN ALL CONDEMNATION CASES, AND TO MAKE SIMILAR STATUTORY CHANGES. http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H8v2.pdf

H 59 AN ACT TO REPEAL THE REQUIREMENT THAT MOTOR VEHICLES REGISTERED IN THIS STATE HAVE AN AN- NUAL SAFETY INSPECTION, ETC. Eliminates vehicle safety inspections and tinted windows inspections, which eliminates safety inspection fees and civil penalties and eliminates safety fee contributions to the Highway Fund, the Volunteer Rescue/EMS Fund, and the Rescue Squad Workers Relief Fund. Contributions to these funds are to be made from registration fees, which are to be increased by $1.00 per vehicle. Sets emission inspection and authorization fee (combined) at $16.40. Requires DMV and DENR to develop and implement a management improvement plan for the Motor Vehicle Emissions Inspection program. http://www.ncga.state.nc.us/Ses- sions/2013/Bills/House/PDF/H59v1.pdf

H 66 (=S 60) AN ACT TO AMEND THE LAW PROVIDING FOR THE ISSUANCE OF CAPTIVITY LICENSES AND PERMITS BY THE WILDLIFE RESOURCES COMMISSION. Provides that wild animals and birds lawfully taken may be held in captivity for scientific, educational, exhibition or other purposes, including “for use or display in an annual, seasonal, or cultural event, so long as the animal is captured from the wild and returned to the wild at or near the area where it was captured." Appears to legalize the New Year’s Eve Possum Drop in Brasstown. http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H66v3.pdf

H 89 AN ACT TO REQUIRE THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES TO SUPPORT THE APPLICATION OF A REGIONAL WATER SUPPLY SYSTEM FOR ALL REQUIRED FEDERAL APPROVALS, AS RECOM- MENDED BY THE ENVIRONMENTAL REVIEW COMMISSION. Provides that DENR shall provide its full support and favorable endorsement of any State or federal permit applications for the preferred alternative for development of a regional water supply when the water system has acquired property for construction of a water supply reservoir or other resource, implemented appropriate conser- vation measures and a leak prevention program, and has signed an agreement to pay expenses incurred by DENR . http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H89v1.pdf

H 94 AMEND ENVIRONMENTAL LAWS 2013 (short title). Provides for five- and ten-year phased permitting of landfill operations. Provides that when a local government operating an erosion and sediment control program assesses a civil penalty, the notice of as- sessment shall direct the violator to either pay the assessment or contest the assessment within 30 days by filing a petition for hearing with the local government as directed by procedures within the local ordinances or regulations adopted to establish and enforce the erosion and sedimentation control program. Provides that clear proceeds of civil penalties collected by a local government shall be remitted to the Civil Penalty and Forfeiture Fund. 9 WRRI NEWS January-March 2013 Sixteen gages discontinued USGS gage infrastructure supports array of critical programs Fifteen stream flow gages (some that historical data on stream discharge, porting the efforts of the Ecological also recorded precipitation) oper- height and flooding velocity to Flows Scientific Advisory Board to ated by the U.S. Geological Survey design culverts and bridges, develop the scientific basis for incor- in eastern North Carolina have been state regulators who must have porating ecological flows into basin discontinued and removed, after the data on actual stream flows in order planning. “Planning for the pattern of Floodplain Mapping Program in the to calculate wasteload allocations flows in streams to support aquatic Department of Emergency Manage- for National Pollutant Discharge organisms and essential abiotic pro- ment ceased cooperative funding for Elimination System permits, cesses, typically referred to as ecologi- them. Most of the discontinued gages cal flows, requires some insight into canoeists and kayakers who need were in the Tar River Basin, but some the flow characteristics. to know if water levels in streams in the Neuse and Lumber were also “Using gages to record daily are dangerously high or too low for lost. Discontinued gages are listed on flows over many years provides an actual paddling, the USGS N.C. Water Science Center understanding of these characteristics. website at http://nc.water.usgs.gov/ scientists studying a wide range of It is important to have a network of endangered_gages.html. water quality and water quantity gages in North Carolina’s mountain, According to the North Carolina issues, and piedmont and coastal plain streams Floodplain Mapping Program website, state agency personnel planning for because factors such as slope and the gages were put into place to im- management of the state’s water geology influence the stream flow prove flood forecasting after Hurricane resources. characteristics.” Floyd caused flooding of unexpected Fred Tarver of the N.C. Division In addition to the fifteen gages magnitude and extent in the Tar River of Water Resources, which provides defunded by the Floodplain Mapping Basin. The gages were used to produce cooperative funding for a network Program, a gage was decommissioned flood inundation maps and to support a of permanent USGS gages, says the on the Rocky River in the Yadkin flooding alert network in real-time. gages provide critical support for Basin when the Water and Sewer Flood prediction and alert is only many of the division’s efforts. Authority of Cabarrus County found it one of many programs and purposes DWR is charged with building no longer needed the data it provided. the USGS gage infrastructure sup- river basin models to support water These recent losses of USGS gages is ports. Also dependent on USGS gages resources planning. Tarver points out a reminder not only of the importance are: that “With basin modeling efforts to of the gage network but also of the power companies that must moni- plan for future water use, it is impor- risky nature of some funding. While tor flows below dams to meet mini- tant to have a historic flow record to funding for gages in the federal/state mum flow requirements of their verify that the model is accurately permanent network has been fairly FERC licenses, representing water usage patterns in reliable, gages funded by local gov- the basin over time.” ernments or other entities for specific highway engineers who must have DWR is also charged with sup- purposes are sometimes at risk. 2013 WRRI Research Awards Through its competitive grants process, WRRI has awarded research grants to the following for fiscal year 2013:

Mark D. Sobsey, Kenan Distinguished Professor UNC-Chapel Hill Department of Environmental Sciences and Engineering Methods to detect fecal indicator viruses and protozoan surrogates in NC reclaimed water: Optimization, performance evaluation, protocol development, validation, collaborative testing, and outreach

continued on page 10 January-March 2013 WRRI NEWS 10

2013 continued from page 9 Matthew Polizzotto, Assistant Professor Upcoming Events NCSU Department of Soil Science Surface and subsurface properties regulating manganese contamination of North Carolina Lake groundwater in the North Carolina Piedmont Management Society Detlef Knappe, Professor Spring Workshop: NCSU Department of Civil, Construction, and Environmental Engineering “Lake Management Issues Bromide occurrence in North Carolina drinking water sources: Effect on disinfection by-product formations in the Piedmont Triad Region of N.C.” Michael Burchell, Assistant Professor and Extension Specialist NCSU Department of Biological and Agricultural Engineering Thursday, March 14, 2013 A mesocosm study to determine nitrogen assimilation capacity of a restored Bryan Park Golf and Conference wetland slated to receive pumped drainage water: A critical component to Center, Greensboro, NC maximize improvement to the Pamlico Sound More information available at David Buchwalter, Associate Professor http://www.nclakemanagement.org/ NCSU Department of Environmental and Molecular Toxicology Environmental approaches to understanding temperature and flow responses of North Carolina Erosion select North Carolina macroinvertebrates and Sedimentation Control Tarek Aziz, Assistant Professor Planning and Design NCSU Department of Civil, Construction, and Environmental Engineering Workshops Sustainable Anaerobic Co-Digestion of Grease Interceptor Waste April 5, 2013: The Wake Jennifer Dorton, Outreach and Education County Commons Building, UNC-Wilmington’s Carolinas Regional Coastal Ocean Observing System Raleigh, NC City of Durham Water Quality Web Portal These workshops are structured to educate and familiarize design profession- The 15th WRRI Annual Conference & als with the NC Sedimentation Pollution 10th NCWRA Symposium Control Act (SPCA), the rules implement- March 20-21, 2013 ing the Act, design standards for erosion Jane S. McKimmon Center, Raleigh, NC and sedimentation control BMPs and elements that are necessary to submit an Join us for the 15th Annual WRRI Conference, the premier research conference focusing erosion control plan. 7.5 PDHs* will be on North Carolina's Water Resource Issues, Solutions, and Opportunities. A draft agenda offered for professional engineers and land is available at http://go.ncsu.edu/wrriac_agenda surveyors, and 7.5 CEUs* will be offered This year’s North Carolina Water Resources Association (NCWRA) symposium to landscape architects (*contingent on will address nutrient credit trading and explore the barriers and opportunities for such a board approval) program in NC. Registration deadline: The conference will conclude with the Progress Energy Seminar, "Water, Energy, Se- Monday, March 25, 2013 curity: Colliding Imperatives," which will feature a keynote address by Steven Solomon, author of Water: The Epic Struggle, for Wealth, Power, and Civilization. The seminar is For more information and to open to the public free of charge but RSVP is required. To register for ONLY the Progress download a registration brochure Energy Seminar go to http://tiss.sanford.duke.edu/programs/CollidingImperatives.php and the agenda please visit: http://ncsu.edu/wrri/code/events. WRRI Annual Conference early registration deadline is March 15. htm Registration information can be found at http://go.ncsu.edu/wrriac