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Enviro advocates call for review after DENR staffers engineer backdoor disapproval of pollution rule

Advocates at the North Carolina Chapter of the Sierra Club and the Pamlico-Tar River Foundation have formally called on the state Environmental Management Commission to conduct a review of questionable circumstances surrounding the demise of rules designed to prevent water pollution.

According to a letter from the groups that was delivered to the Commission yesterday, proposed rules governing riparian buffer mitigation (i.e. the use of vegetated strips of land along side waterways to protect them from pollution) were scuttled last year when the Rules Review Commission received several letters of objection. Under state law, when the Commission receives 10 or more such letters, the rule(s) in question are forwarded to the General Assembly for additional review.

In this case, however, four of the 11 letters of objection ultimately submitted were from McCrory administration staffers employed by the Department of Environment and Natural Resources (DENR). As the environmental advocates note, this may well have been an unprecedented and highly questionable set of circumstances:

State law gives the Environmental Management Commission the authority to adopt water quality rules and rules implementing the Ecosystem Enhancement Program. Under G.S. 143B-14, DENR has an obligation to provide staff support to the EMC in development of those rules. Other state laws require DENR to implement and enforce the rules adopted by the EMC.

The submission of letters by McCrory administration staff as “individuals” appears to be a purposeful circumvention of the APA and state laws delegating rulemaking authority to the EMC. These DENR staff appear to have effectively taken over the rulemaking process, without notice or consultation, dispensing with five years of work by a stakeholder group and the role of the EMC including ublic hearings held by the Commission as well as a formal public comment period.

We do not believe state law authorizes a principal state agency serving as staff to a commission to intervene in a commission rulemaking process in this way.”

In other words, it appears that when painfully negotiated anti-water pollution rules failed to generate the requisite objections from the public necessary to trigger legislative review, the McCrory administration simply manufactured the objections by having DENR staffers act as individuals members of the public — something that may well have been a “first” in environmental rulemaking and, quite possibly, beyond the what the law in this area contemplated.

Hmmm. Let’s hope the Commission takes a closer look at the process. Stay tuned.

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