Coastal Changes OK’d In Whirlwind Session

By KIRK ROSS
COASTAL REVIEW ONLINE

Dozens 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 Hatteras Island.

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, R-Beaufort.

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 Thursday night.

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 this week.

“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 waters.

That bill, 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 federation.

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 communities.”

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.

Regulatory Changes

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 dangerous precedent.

“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,” she said.

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:

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 permit expires.

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.

“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.”

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 facility.

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 County.

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.