June 19, 2018
Coastal Changes OK’d In Whirlwind Session
By KIRK ROSS
COASTAL REVIEW ONLINE
of coastal provisions were approved last week as the North Carolina
General Assembly pushed through more than a hundred bills in an attempt
to wrap up its 2018 short session by month’s end.
The week began with a House override of Gov. Roy Cooper’s veto of the
state budget and ended with approval of controversial coastal
stormwater changes, a stalemate over legislation to expand the
shellfish industry and the rejection of a plan to allow beer and wine
sales on the planned passenger-only ferry run between Ocracoke and
In between, legislators fought for days over proposals aimed at
reducing nuisance lawsuits over hog and poultry operations and
fast-tracked a technical corrections bill that included significant
changes to dredging funding and provisions in the budget in response to
GenX and emerging contaminants.
This week, the legislature is expected to take action on a series of
constitutional amendments to put before the voters in November,
including giving the General Assembly more authority in drafting voter
identification laws, a cap on income taxes and a constitutional right
to hunt and fish.
Shellfish Bill in Limbo
Also this week, House and Senate negotiators will try again to reach
agreement on a shellfish aquaculture bill, sponsored by Sen. Bill Cook,
Cook’s original measure was Senate Bill 738, but on Friday House Bill 361, became the new vehicle for the legislation.
The measure, Support Shellfish Industry, would create an expanded
shellfish leasing program, but the size and scope of the operations and
the potential for out-of-state companies to hold large leases in North
Carolina waters has been a constant sticking point.
A conference committee that had been working on an agreement to get the
bill through the House appeared to reach agreement on new language
Then on Friday, the Senate passed the new version, which reduced the
individual lease size maximum from 300 to 200 acres, but the House
leadership later pulled the bill from its calendar and sent it to the
House Rules Committee, which did not take up the bill during its final
meeting of the week.
During debate in the Senate earlier on Friday, Cook said he believed
the two chambers had reached a deal after agreeing to reduce the size
of the leases and limit them to Pamlico Sound.
In a text message to Coastal Review Online Saturday, Rep. Pat McElraft,
R-Carteret, said she wouldn’t know the bill’s fate for certain until
“Not sure,” she wrote, “could be dead for the session.”
If so, the outcome would be a major setback for Virginia-based Cooke
Seafood USA Inc., the corporation that acquired Wanchese Fish Co. in
2015 and lobbied successfully last year to allow out-of-state
corporations to build up to 1,500-acre aquaculture operations in state
also sponsored by Cook, was signed by the governor in late July 2017
with little public debate. However, it was later determined not to
apply to shellfish farms, so Cooke USA has continued to seek permission
to operate large shellfish farms in North Carolina.
The new bill also includes siting criteria and administrative reviews
for bottom and water column leasing programs and a set of shellfish
enterprise zones to help efforts to market the state’s oyster industry.
Cook had asked the North Carolina Coastal Federation to review the
parts of his bill that established procedures for siting leases.
“We offered ideas to try to reduce conflicts with traditional uses of
coastal waters but were not asked to weigh in on lease sizes and
residency requirements,” said Todd Miller, executive director of the
When the bill was introduced, size and out-of-state residency changes
supported by Cooke Seafood immediately generated intense public
opposition by shellfish growers and other fishermen.
Although chances are slim that further compromise could be reached in
the remaining days of the session, efforts to rebuild the state’s
oyster population and market aquaculture continue. Any new legislation
next year is likely to build on a report due late this year on an
overall strategy. In 2016, as part of its initial round of studies, the
legislature directed the new North Carolina Policy Collaboratory at
University of North Carolina Chapel Hill to convene a group of
stakeholders to work on the ecological and economic stability of the
state’s shellfish industry.
“This controversial bill has generated a lot more interest in this
study by fishermen and shellfish growers,” said Miller. “That’s good,
because the study needs diverse and expanded stakeholder involvement to
make sure it reflects the concerns and needs of our coastal
The report is due at the end of December.
Alcohol Provision Jettisoned
It came down to the wire, but a plan to allow beer and wine sales on
the new Ocracoke-Hatteras passenger ferry when it begins service was
eliminated after a last-minute vote in the House approved a rewrite of
the omnibus transportation act that left it out of the bill.
Earlier in the week, prospects were favorable for the provision, which
would have applied to passenger-only ferries, since it was included in
must-pass transportation legislation. A close, 56-57 vote Thursday to
take out the provision failed, but likely because it would have also
rescinded existing alcohol service on trains. A group of conservative
House members refused to budge and Friday, House leaders granted
another up-or-down vote on just the ferry section.
Those opposed to alcohol sales including McElraft, argued that
inebriated passengers could create security issues on the ferry and the
state shouldn’t be involved in serving drinks.
Proponents of the plan said there would be security to assure safety on
the run and that the alcohol sales are part of the economic model the
partnership backing the new ferry used to make it feasible. Drinks on
the ferry, they argued, would be served by a private contractor and not
a state employee.
Coastal representatives voting to take the alcohol provision out of the
final version of the bill were George Cleveland, R-Onslow, Phil
Shepard, R-Onslow, and Bob Steinberg, R-Chowan.
Voting against removing the alcohol sales provision were Reps. Deb
Butler, D-New Hanover, Holly Grange, R-New Hanover, Robert Muller,
R-Pender, and Michael Speciale, R-Craven.
Reps. McElraft, Beverly Boswell, R-Dare, and Frank Iler, R-Brunswick, were absent and did not vote.
Also clearing the legislature on the last day of a hectic week was this
year’s edition in a series of “regulatory reform” bills. The latest
measure, like its predecessors, also featured numerous environmental
rule and policy changes.
Among the most controversial changes this year is a provision
introduced and pushed for last year by Sen. Michael Lee, R-New Hanover,
aimed at giving property owners in a New Hanover County subdivision
relief in a case that involves overbuilding of impervious areas.
Environmental organizations have opposed the provision, saying it has
wider applications and amounts to a “get-out-of-jail-free card” for
developers who ignore or bypass stormwater requirements.
In hearings last year, Department of Environmental Quality officials
said they had reached an agreement with homeowners and the change was
unnecessary. They warned that the provision was written in a way that
could apply to at least 150 other coastal subdivisions.
In House floor debate Friday, Rep. Deb Butler, D-New Hanover, said that
while the idea is to help residents in an older subdivision who were
not informed of the violations by the developer, the provision sets a
“While I think the intention is probably pretty good, it’s so broadly
drawn that we don’t have any idea how many subdivisions we are
unwittingly encouraging to not take care of their stormwater plans,”
Butler said the legislature should revisit the provision next session to better understand the consequences and make changes.
Also in the regulatory omnibus is an exemption on rules for temporary
erosion structures that appears to greenlight a more permanent solution
to a decades-old fight over a sandbag wall at The Riggings, a
condominium complex in Kure Beach.
The provision modifies state law on erosion control structures to give
the Coastal Resources Commission authority to issue a permit for either
repair or a permanent replacement of the current temporary sandbag wall
that was originally granted in 1995.
The new language specifies that to qualify for use of a permanent
structure, the area must be “adjacent to an intertidal marine rock
outcropping designated by the State as a Natural Heritage Area,” which
describes the coquina rock outcropping near Fort Fisher, a unique
geological feature on the North Carolina coast that was designated a
Natural Heritage Area in 1982.
Under federal law, the outcropping area may not be covered during beach re-nourishment projects.
Other sections of the Regulatory Reform Act of 2018 include the following:
“It’s disappointing that the legislature
includes rollbacks to our state environmental protections as a part of
nearly every regulatory reform bill,” said Cassie Gavin, director of
government relations with the Sierra Club’s North Carolina chapter.
“It’s time to end giveaways to favored industries and, instead, shore
up our state air and water protections as North Carolina grows.”
- Extend operations at landfills after local
governments close them by requiring local government to allow
contractors to continue operating until the landfill’s life-of-site
- Limit the governor’s appointment powers for the state utility commission when the General Assembly is not in session.
- Expand the geographic range for importation of
American eels to the Chesapeake Bay by adding Maryland to Virginia and
South Carolina as the states exempt from permit requirements under the
Marine and Estuarine Organisms Rule.
Budget Passes, So Do Revisions
The 2018 budget adjustment legislation became law last week with the
General Assembly’s final override vote of Cooper’s veto on Tuesday.
Although that bill remains the same, the legislature followed up quickly with a technical corrections bill
that changed a section related to DEQ enforcement of GenX and other per
and poly- fluoroalkyl substances, or PFAS, that specifically adds air
emissions of PFAS to actions covered under the section. The change in
language was requested by DEQ because the legislature changed state law
in 2012 to specify that air emissions are not a discharge of waste
under the federal Clean Water Act. DEQ is pursuing legal action against
GenX producer Chemours contending that air emissions from the plant
have contaminated surface water and groundwater near the Bladen County
The technical corrections bill also directs that $300,000 of the
$2,219,000 in funds carried forward for maintenance of the Manteo Old
House Channel be allocated to the North Carolina Wildlife Habitat
Foundation for the Oyster Highway project on the New River in Onslow
The remaining $1,919,000 for the Old House Channel project is shifted
to maintenance dredging of Ranges 1 to 4 of the Manteo Channel. The
bill also removes a match requirement for use of those funds.