20080868 Ver 2_SELC (Public Comments)_20090107 (2)

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
Facsimile 919-929-9421
[e-mail]
200 WEST FRANKLIN STREET, SUITE 330
CHAPEL HILL, NC 27516-2559
Charlottesville, VA
Chapel Hill, NC
Atlanta, GA
Asheville, NC
Sewanee,TN
January 6, 2009
Via Electronic Mail and U.S. Mail
Mr. Frank Crawley
N.C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699-9001
JAN 7 2009
OENR - sNAfER ULIALM
WETLANDS AND STORMWATER BRANCH
Re: Guidance for Flexible Buffer Mitigation
Dear Mr. Crawley:
Please accept these comments on the Division of Water Quality's ("DWQ")
request to the Water Quality Committee ("WQC") to proceed to the Environmental
Management Commission ("EMC") with a program allowing alternative mitigation
programs for riparian buffer mitigation under N.C. Gen. Stat. § 143-214.20(a)(4). To the
extent that the attachment posted with the Water Quality Committee's January agenda
represents the substance of DWQ's proposal, this guidance proposal is rulemaking and
must go through the rulemaking procedures described in the North Carolina
Administrative Procedures Act ("APA"), N.C. Gen. Stat. § 150B-1, et seq. Because of
these requirements under the APA, the Division of Water Quality should withdraw its
request and proceed with rulemaking.
According to the posted agenda item and attachment, the Division of Water
Quality has submitted, and intends to request WQC action on, a proposal to modify the
State's riparian buffer mitigation rules through a policy guidance document applying
N.C. Gen. Stat. § 143-214.20(a)(4). That proposed guidance would "describe a process
that can be used by applicants and mitigation providers to allow alternatives to traditional
buffer mitigation." The appropriateness of creating such a process through a guidance
document must be evaluated in light of the APA and its definition of rules that require
notice and comment rulemaking.
Under the APA, a rule is:
any agency regulation, standard, or statement of general applicability that
implements or interprets an enactment of the General Assembly or
Congress or a regulation adopted by a federal agency or that describes the
procedure or practice requirements of an agency. The term includes the
establishment of a fee and the amendment or repeal of a prior rule.
100% recycled paper
N.C. Gen. Stat. § 150B-8(a). The Division's proposed guidance clearly meets this
standard. First, it is an agency "statement of general applicability" - it applies to all
riparian buffer mitigation requirements in the State. Second, it implements N.C. Gen.
Stat. § 143-214.20(a)(4). An agency action implementing "an enactment of the General
Assembly" is a rule and must go through rulemaking.
Moreover, the effect of this provision would be to amend the existing mitigation
requirements and alternatives that are established by rule. See 15A NCAC 02B .0242
(Meuse River Basin), .0244 (Catawba River Basin), .0260 (Tar-Pamlico River Basin).
The policy guidance proposed by DWQ purports to adopt a fourth option for riparian
buffer mitigation that would supplement the three existing mitigation options established
by rules: payment into a fund for mitigation, donation of real property, or riparian buffer
restoration. The guidance option would only be available "if traditional buffer mitigation
is shown not to be practical by the applicant." In other words, if an applicant cannot
satisfy the standards mandated by the appropriate riparian buffer mitigation rules, the
applicant would be allowed to invoke this guidance document to bypass those regulatory
requirements. But the APA does not allow such a modification to rules without
rulemaking. Therefore, the guidance is more accurately a rule, and must undergo
rulemaking.
The establishment of the other mitigation options described in N.C. Gen. Stat. §
143-214.20 is also instructive. The statute directs the EMC to create alternatives that
allow mitigation through payment into a mitigation fund, property donation, and riparian
buffer restoration. The riparian buffer mitigation rules that would be affected by the
proposed guidance each include rules that create standards for the first three mitigation
options envisioned by N.C. Gen. Stat. § 143-214.20(a)(1), (a)(2), (a)(3). See 15A NCAC
02B .0242 (Meuse River Basin), .0244 (Catawba River Basin), .0260 (Tar-Pamlico River
Basin).. Following this pattern, DWQ must, as it did with other mitigation options,.
conduct rulemaking to create this fourth option allowing alternative buffer mitigation.
Thank you for considering these comments. Please contact me if you have any
questions regarding this letter.
Sincerely,
Geoffrey R. Gisler
Staff Attorney
cc:
Mr. Stephen T. Smith, NC EMC
Dr. Charles Peterson, NC EMC
Mr. John Dorney, NC DWQ
Ms. Heather Jacobs Deck, Pamlico-Tar River Foundation
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