Local environmental controls likely to be whittled down by regulatory reform bill

It’s nine pages long with the short title “Regulatory Reform Act of 2013.” But given its contents, Rich Ducker of the UNC School of Government calls Senate Bill 612  “a real Christmas tree of a bill – all sorts of things hung on it.”

“I guess the name of the bill gives a decent hint of what the framers had in mind who developed the bill,” says Ducker, who is an associate professor of public law and government. “It tends to focus on environmental regulation, but there are probably 10 to 15 different topics.” The biggest issue, however – and one Ducker thinks may be a “sleeper issue to some people”—is language that appears to hold that local ordinances cannot be any more stringent than state law.

Under the new language, Ducker explains, “state preempts anything local, and similar to that – where there are corresponding federal programs or regulation, the state is not permitted to adopt rules more stringent than federal.” That local preemption, he says, “has the potential for affecting a lot of things.” Those things could include flood hazards, and sediment and erosion control standards in specific topography, including “a lot of sedimentation and erosion ordinances across the state,” he points out, that affect areas smaller than the state’s one-acre threshold.

Jon Creighton, director of Buncombe County Planning and Development, sees similar conflicts. “I think the bill quite probably is going to have an effect on [Buncombe County’s] soil and water and erosion control. I think it would do away with the steep-slope ordinance,” he observes, adding that “It [the potential law] seems pointed to a lot of litigation.”

“We’re tracking it,” says Creighton. “All of us in government – city of Asheville, municipalities that do their own enforcement.”

Katie Hicks of Asheville, assistant director of Clean Water for North Carolina, is eyeing the bill as well. “It just doesn’t make sense to prevent local governments from making common-sense regulations for their unique areas,” she says, commenting that many mountain communities have tailored stormwater and erosion rules to deal with steep-slope development and its impacts on water quality in rivers and streams. Eliminating those regulations, she says, will “turn back the clock on progress that’s been made to address unique problems.”

Add air to the water and soil concerns. The Western North Carolina Regional Air Quality Agency is also keeping tabs on SB 612, according to David Brigman, director. He’s watching for any applicability to air quality standards, including particulate pollution and the requirements for some other emissions rules. “We are consulting with legal counsel to try to get a handle on exactly how this could play out here in our jurisdiction,” says Brigman. The agency is one of three local air-quality programs in the state; Mecklenburg and Forsyth counties also have state-sanctioned jurisdictions.

SB 612 was passed by the Senate earlier this month after a series of amendments, and is currently in the House Committee on Regulatory Reform. Western North Carolina members of that committee include Reps. Nathan Ramsey of Buncombe and Michele Presnell of Haywood, Madison and Yancey counties, Republicans, and Joe Sam Queen of Haywood, Jackson and Swain counties, Democrat. Sen. Ralph Hise, Republican representing Madison, McDowell, Mitchell, Polk, Rutherford, and Yancey counties is a co-sponsor of the bill.

by Nelda Holder, contributing editor