RALEIGH, N.C. — A new law, passed after an overridden veto two days after Christmas, appears to weaken stormwater regulations across the state — allegedly at the behest of a Wilmington-area developer.
The new regulations are bundled in Senate Bill 469, a bill with that makes “various technical, clarifying and conforming changes” to state laws.
RELATED: Wilmington City Council postpones vote on stormwater de-regulation indefinitely
The changes
Section 26 of the bill expands where development can occur near surface water. It also adds new language regarding where stormwater runoff should run in new developments with impervious surface area (land where water cannot easily pass through).
Before, stormwater was required to pass through a vegetative buffer. Now, runoff must pass through “a segment” of a vegetative buffer. It’s not clear exactly how large, or what proportion of a vegetative segment is now required for stormwater runoff to legally reach surface waters.
The bill also strengthens the state’s position on redevelopment standards. The standards — outlining when increased regulations are required for redevelopment of impervious surfaces — did not change. Private property owners are not required to install new or increased stormwater controls for existing development or redevelopment activity that does not remove existing stormwater controls.
Increased stormwater controls are only allowed, and applicable to the amount of new impervious surface that exceeds the total amount of the preexisting impervious surface before redevelopment; in other words, preexisting structures, pavements, etc., are grandfathered in.
But Section 26(b) does now apply to all local governments, “regardless of the source of their regulatory authority.” It also requires local governments to add the subsection in their stormwater ordinances.
The veto
North Carolina Governor Roy Cooper’s veto message, signed Dec. 21, objects the new changes:
“Ending stormwater and water quality protections threaten the safety of our communities,” Cooper wrote.
The stormwater changes were introduced in December. Cooper’s veto was overridden in the House and Senate on Dec. 27 and became law.
No Democratic representatives and only three Democrats senators voted in favor of overriding Cooper’s veto. His veto was overridden by the state’s Republican supermajority, which was recently broken in the Senate with the election of Democratic Senator-elect Harper Peterson.
Area legislators who voted in favor of overriding Cooper’s veto, including Representatives Frank Iler, Ted Davis and Senators Bill Rabon and Michael Lee, did not immediately respond to a request to comment. Representative Holly Grange responded but could not immediately provide comment as she is tending to a family matter.
Overshadowed by state controversies wrapped in the bill, including voter ID and state elections board changes, Senator-elect Peterson was not in favor of the outgoing legislator’s “parting gift.”
“It kind of flew under the radar,” Peterson said. “We have to be very careful in how we redevelop and build anew, we should be taking great care. And this is detrimental – or counterproductive”
Peterson said he is concerned about the lack of special consideration for coastal communities, like New Hanover County. “The fact that it supersedes city and county and local jurisdictions and their ability to develop sensitive guidelines and regulations — that’s worrisome too,” he said.
Early critiques
Though it’s still the holiday season, Keri Allen, a North Carolina Coastal Federation coastal advocate, said the group takes issue with the bill.
“These ambiguous changes are concerning,” Allen said.
Vegetative buffers play a vital role in reducing the volume of stormwater runoff, Allen said, before it reaches public surface waters. Following severe flooding after Hurricane Florence, she said the state needs stronger stormwater regulations, not weaker.
“Stormwater runoff is the most significant source of pollution on our waterways,” Allen said.
An analysis of the bill, prepared by the Southern Environmental Law Center, points out the legislation’s potential for loopholes.
In regards to the change requiring runoff to pass through a “segment” of a vegetative buffer, the analysis contends: “Conceivably, stormwater could be shot through a very slender part of the buffer, which would not allow the beneficial slowing or filtration to occur.”
Also, local governments will be strapped from enacting ordinances in accordance with federal stormwater permits, the analysis argues.
“These provisions could potentially set up a conflict between state and federal law,” Allen said. The analysis states that, sooner or later, a court will rule municipal separate storm sewer system (MS4) permits — or permits that allow local governments to discharge stormwater into public water bodies — won’t be in line with The Clean Water Act unless state standards are strengthened.
“It is amazing to see the legislature take this position in the wake of major flooding in 2016 and 2018, and rising rain-driven flooding from smaller events,” the analysis states.
Notably, the analysis alleges the “drastic provision” was “snuck” in the bill to serve a single developer. That developer is allegedly in a legislative district near Wilmington, the analysis states, although no specific individual or corporation is named.
While a future delegation in the General Assembly could, in theory, pass legislation to counteract the bill, in 2019 the House and Senate will still have Republican majorities — although no longer veto-proof.
“At this point, there is no legislative recourse,” Allen said.
Send tips and comments to Johanna Ferebee at johanna@localvoicemedia.com
