Groundbreaking settlement between environmental groups, NC DOT over Complete 540 toll road

The Dwarf wedgemussel, the Atlantic pigtoe and the Neuse River waterdog finally got a break.

The NC Department of Transportation has agreed to deploy dozens of crucial environmental protections worth millions of dollars as part of a federal court settlement over the Complete 540 toll road project. These protections would help ensure endangered, threatened and rare species survive; improve air quality; and create more open space in Wake County.

“This agreement is a win for North Carolina,” said DOT Secretary Jim Trogdon in a prepared statement. “Being able to settle these lawsuits moves this critical project forward and saves taxpayers millions of dollars. In addition, the components of this agreement offer strong environmental protection along the project corridor, which will benefit this community for generations to come.”

In return, the plaintiffs — Sound Rivers, Clean Air Carolina and the Center for Biological Diversity— agreed to drop the lawsuit. The Southern Environmental Law Center represented the plaintiffs against the state DOT, US Fish and Wildife Service, the Federal Highway Administration, the NC Department of Environmental Quality and the National Marine Fisheries Service.

The $2.2 billion project would connect with the existing tollway near Highway 55 in Apex, then route 28 miles through southern Wake County before before joining I-440 and US 64 near Knightdale. The toll road has been planned for years in anticipation of rapid growth — which is now occurring — in Wake County. 

But opposition to the toll road has persisted nearly as long. The selected route — one of a half dozen that were considered — will exact serious human and environmental consequences. It would plow over 156 wetlands (69.5 acres) and 39 ponds. It would involve 140 stream crossings, including the sensitive Middle Creek, Lower Swift Creek and the Neuse River. It would jeopardize the habitat of endangered species and displace 209 households and five businesses.

DOT has already agreed to pay up to $5 million for a mussel propagation program at Takes Mill Aquatic Conservation Center in Wake County. However, the agreement lasted only five years. 

Under the settlement, DOT will pay for an additional five years, worth $3 million.

DOT also has committed to award another $4.5 million to research institutions or universities for water quality testing and mussel conservation programs by the end of 2022.

As climate crisis has become more urgent, opponents also have been alarmed that investments in car-centric projects, instead of public transit, will increase greenhouse gas emissions.

In North Carolina, the transportation sector ranks second only to the energy utilities in greenhouse gas emissions.

Studies commissioned by the plaintiffs showed that the toll road would actually increase congestion and air pollutions on surface streets as drivers tried to avoid paying to travel on 540.

The settlement agreement requires DOT to allow public buses to use the toll road for free, as well as promote ways to reduce the number of vehicle miles traveled, statewide. A greenhouse gas emissions analysis is also part of the agreement. And all new road contracts with DOT in the Triangle would require or incentivize the use of lower-emission construction equipment.

DOT would spend another $5 million to acquire high-quality land within the Neuse and Tar-Pamlico River watersheds for habitat conservation. The agency would buy, if possible, additional acreage near the Complete 540 project and Swift Creek.

“This unprecedented agreement will be a game-changer for many of the most important environmental issues in our state,” said Kym Hunter, senior attorney with the SELC. 

The total cost of the environmental protections is upward of $10 million. However, that represents only one-half of 1 percent of the total cost of the project. A protracted court case could have cost tens of millions of dollars and delayed construction for years. 

Construction on the first phase from Highway 55 to I-40 is scheduled to begin yet this year. If this phase the project stays on schedule it would open in 2023.

Environment, Governor Roy Cooper, Legislature

Governor Cooper vetoes billboard measure

House Bill 645 is about as popular with the governor as the Edsel was to America.

Gov. Roy Cooper vetoed House Bill 645 today, temporarily halting a measure that further limited local governments’ authority on where to locate billboards, including digital ones.

His veto message reads:

“Protecting the beauty and environment of North Carolina should be a top priority, but this legislation authorizes cutting down trees and other clearing work along roadways without the consent of nearby communities. Local governments should have more of a say in where their communities allow billboards.”

The legislation has long been controversial and had failed to advance during other sessions.

Among the bill’s opponents are environmental, conservation and wildlife groups, who are concerned that outdoor advertising companies would cut down trees to ensure their “right to be viewed.” A greater number of the giant roadside ads would also further clutter the natural landscape.

Many local governments, such as Durham, oppose the measure because it encroaches on their zoning authority.

Proponents argue that relaxed regulations are needed to support the outdoor advertising industry, which like many traditional media, is struggling. About 8,200 billboards in North Carolina are currently permitted or in the process of being permitted. Nonetheless, the industry has lost about 1,000 statewide in the past decade.

Based on the last vote count, the House lacks enough support to override the veto. On Aug. 7, the House voted 60-54 in favor of the measure; three lawmakers had excused absences and three did not vote. 

To reach the three-fifths majority for an override, the House would need 72 votes, presuming all 120 members were present. Even with the six excused absences and abstentions, the House would have only 66.

In the Senate, the bill passed 27-17, with six excused absences. If all members were present, the Senate would need 30 votes to override. But without the House, the veto would stand.

Environment, Legislature

In the House, a major amendment to controversial Duke Energy rate-making bill hands the hot potato back to the Senate

Rep. Larry Strickland: “Not a lot of people want this bill outside of Duke Energy.”

A key provision in Senate Bill 559 was upended in the House Tuesday afternoon, which made the measure more palatable to opponents but added uncertainty to it future.

Colloquially known as the Duke Energy rate-making bill, it contained a controversial section that allowed the utilities commission to approve multi-year rate plans. Utilities could then avoid requesting rate hikes more often. While bill proponents in the legislature said it would add certainty to rate-making, there’s no guarantee that rates would decrease. If they increased, customers could be locked into higher bills for several years.

The amendment now require the Utilities Commission to study multi-year rate making and other methods. “Not a lot of people want this bill outside of Duke Energy,” said Rep. Larry Strickland, a Republican representing Harnett and Johnston counties. “We need a lot more discussion. This impacts small businesses, industry and families.”

The study would be due no later than March 1, 2020.

The amendment passed 63-51, which teed up the near-unanimous approval of the bill. After a 112-2 vote, the measure now returns to the Senate.

Section 1 of the bill allows Duke Energy to ask the Utilities Commission for permission to sell bonds to recover costs associated with storm damage. It has met no opposition. But with Section 2, and now the amendment, the fate of the bill in the Senate is uncertain. During committee hearings and on the Senate floor earlier in the session, several Democratic senators, including Mike Woodard of Durham County, suggested peeling off the controversial section into a study bill. Sen. Ralph Hise, a bill co-sponsor, quickly quashed the proposal.

The bill has been tweaked several times to attempt to assuage concerns from industry and consumer advocates that Duke could use alternative rate-making to “milk profits from customers,” said Rep. David Lewis, a Harnett County Republican, who supports the measure.

The original bill contained “earnings bands.”  The banding portion of a multi-rate plan would allow the Utilities Commission to establish a return on investment — a profit — for the utility that acts as a midpoint; from there, the commission also would set a low- and high-end range — a band — for profitability. This provision would require Duke Energy to refund to customers any profits above 1.25 percent on its rate of return.

Bill sponsors changed the bill so that profits from the middle and top of earnings bands were directed to projects like affordable housing.

Thirty-five states have enacted alternative rate-making mechanisms, but they differ in their approach and success. “Let’s not make mistake Virginia made,” Strickland said, “which resulted in hundreds of millions of dollars in overcharges.”

Lewis opposed the amendment. “Why study something that merely gives the Utilities Commission the option. It’s redundant to study whether they would like to have the option. The amendment is damaging to the bill.”

A study is beyond the scope of the Utilities Commission, said Rep. Dean Arp, a Union County Republican. “This is a confusion of checks and balances. Their role is not to enact a study but to carry out policy.”

Bill proponents often touted that the measure had bipartisan support because it Democrat Dan Blue of Wake County is a co-sponsor. However, there also has been bipartisan pushback.

Rep. John Szoka, a Republican from Cumberland County, said he could not support the multi-year rate-making portion of the bill. “It’s better than when it was introduced but it still has flaws.”

Szoka said he agreed the changing energy industry needs new methods for rate-making. Because of energy efficiency, the demand for electricity has decreased. “Rewarding a utility for building more [plants] is no longer viable,” Szoka said. I understand where impetus for Section 2 is coming from. But it doesn’t solve the problem. It’s utility-centered, not ratepayer-centered. The best alternative is a study.”

Environmental groups were pleased with Strickland’s amendment. Josh McClenney, North Carolina field coordinator for Appalachian Voices, issued a statement:

“This is how public policy should be made, with a thorough and open vetting by the public and by experts to understand the full impact on North Carolina families and businesses, not through Duke Energy writing its own bills and making deals with legislators behind closed doors. Regardless of what happens when the bill gets to the Senate, multi-year rate hikes should not be passed outside of broader utility regulatory reform.”

Molly Diggins, director of the NC Chapter of the Sierra Club urged the Senate to agree with the changes. “There are many utility rate-making tools that could benefit the environment and customers that were not included in this bill because it was crafted by and for the utility, not the public.”


MVP Southgate natural gas pipeline targets Jordan Lake watershed, public meetings this week

The Jordan Lake watershed is in the bulls-eye of a proposed natural gas pipeline that would cross the drinking water supplies for hundreds of thousands of people. The Federal Energy Regulatory Commission has issued a Draft Environmental Impact Statement for the MVP Southgate project and is holding two public meetings this week to receive comments.

If built, the MVP Southgate would be a 74-mile extension of the controversial Mountain Valley Pipeline, which starts at a fracked gas operation in West Virginia. Owned by MVP, LLC, a subsidiary of EQM Midstream Partners, a company based near Pittsburgh, the main MVP line is under construction in Virginia, where its has racked up 300 water quality violations.

The Southgate project would enter North Carolina in Rockingham County, near Eden, cross the Dan River, burrow under the Stony Creek Reservoir and travel southeast, hugging the Haw River to Alamance County. The Haw River lies within the Jordan Lake Watershed and feeds the lake, a major drinking water supply for Cary, Apex and other cities and towns.

The purpose of a DEIS is to assess the potential and likely environmental effects of the pipeline on waterways, endangered species, habitats, forests and communities along its route. After FERC receives public comment on the draft, it will issue a Final Environmental Impact Statement.

Like FERC’s environmental impact statement for the Atlantic Coast Pipeline in eastern North Carolina, the DEIS glosses over or ignores serious and cumulative impacts of MVP Southgate. Along its route, it would cross 224 waterbodies, including three major ones, as well as 27 acres of wetlands. According to the 700-page document, the project would cause long-term, permanent impacts to 615 acres of forest, 12 acres of protected riparian forested lands in the Jordan Lake watershed, and 1,439 acres of wildlife habitat.

The company is also proposing to run the pipeline parallel to and within 15 feet of a waterbody in 28 locations, including within the Jordan Lake watershed, where rules require a 50-foot buffer.

Emily Sutton, the Haw Riverkeeper, noted that the company proposes using horizontal drilling beneath the Stony Creek Reservoir, the drinking water supply for the City of Burlington. Because of concerns about the toxicity of pipe coatings, federal regulators have asked owners of the Atlantic Coast Pipeline for more data about those materials.

The pipeline also would cross the Dan River, already injured by the 2014 coal ash disaster, as well as tributaries to the flood-prone Haw River, which is polluted with emerging contaminants such as 1,4-dioxane. The Haw also has problems with excessive sedimentation, which degrades water quality.

Construction of the MVP will use about 6 million gallons of water, but the DEIS does not pinpoint the source, which prevents federal regulators from assessing the environmental effects of those withdrawals.

Sutton said she is also concerned that during construction contractors will dam some of the waterbodies to install the pipeline. “If they release all that water at once it will drown aquatic life and the velocity of the stream will cut the banks away.

The DEIS says that contractors will restore and maintain the health of environment “when practical.”

MVP Southgate, LLC, says the pipeline is necessary to transmit gas to central and western North Carolina. However, in a November 2018 letter to FERC, NC Department of Environmental Quality Assistant Secretary Sheila Holman questioned the validity of the project. “We remain unconvinced the project is necessary,” she wrote.

Rep. Jerry Carter, a Republican from Rockingham County, and other  elected officials, including the Alamance County Commissioners, have also said they oppose the project. The main proponent, Copland Fabrics, in Burlington, said it needed the gas, but the company has since declared bankruptcy. Businesses that wanted to tap directly into the line would have to pay hundreds of thousands of dollars to do so.

The DEIS omits several important factors, including the the environmental justice burden the pipeline would impose on the Black community of Green Level.

Nor does the document address the role of pipelines in climate change. Scientific studies have shown that methane, a powerful greenhouse gas, leaks both from the fracked gas wellhead, as well as along the route, at rates greater than previously thought. DEQ’s Clean Energy Plan, released for public comment Aug. 16, notes that pipeline construction also releases carbon dioxide, another greenhouse gas, through emissions from trucks, machinery, which is not accounted for. 

To proceed, the project must receive a water quality permit, known as a 404, from the US Army Corps of Engineers, as well as a state permit, known as a 401. But the Trump administration released proposed rules last week that would restrict states’ authority to reject or amend 401 permits. State regulators could consider environmental impacts only from direct discharges associated with pipelines, but not sedimentation and erosion.

A second Trump administration proposal, announced last week, would weaken federal law by requiring regulators to consider the “economic effects” of mitigating the environmental effects on endangered and threatened species. If the proposal passes legal muster, it could reduce protections for these species, such as the Yellow Lampmussel, along the MVP Southgate route. 


agriculture, Environment

EPA protection of bees, pollinators against pesticides is weak, getting weaker

Bee hive at Burt’s Bees at American Tobacco Campus, Durham (File photo: Lisa Sorg)

While the EPA’s pollinator protection program sounds promising, it does little to actually ensure the welfare of the nation’s honeybees, according to an EPA Inspector General report published this week.

The report criticized the EPA for inadequately assessing the success or failure of 45 state-managed pollinator protection plans. The program, which is voluntary, is supposed to ensure bees are safe from the harmful effects of pesticide exposure.

However, the program includes only managed colonies — those that farmers hire to pollinate their crops. Wild colonies and other pollinators that are also susceptible to pesticide poisoning are not accounted for.

And, the report went on, the program is focused solely on acute poisoning, not the chronic exposure that can weaken and kill the bees, especially during overwintering, when food sources are scarce.

The EPA has been working on a survey of participating states, including North Carolina, about their individual programs. However, there is no plan on how, or if, the data will be used to improve state protections.

The survey is scheduled to launch this fall, and it is a separate data collection program from the one run by the US Department of Agriculture. Last month the USDA  announced it would no longer collect honeybee colony data, which is critical to understand the health and threats to these pollinators.

The Honey Bee Colonies report allows agencies, beekeepers, and other interested parties to compare quarterly losses, additions, and movements and to analyze the data state-by-state. The agency said a lack of funding prompted the program’s closure.

Since 1940, the US has lost more than half of its managed colonies, from 5.7 million to 2.7 million in 2015. Acute and chronic exposures to pesticides are among the causes.

Coincidentally, also last month, the EPA reintroduced the pesticide, allowing sulfoxaflor not only to be sold commercially but also be applied for new uses. The decision was prompted by a 2015 Ninth Circuit Court of Appeals ruling that required the EPA to remove sulfoxaflor from the market and ordered the agency to further study its effects on bees.

The EPA said data shows that when used according to the label, “sulfoxaflor poses no significant risk to human health and lower risk to non-target wildlife, including pollinators, than registered alternatives.”

Sulfoxaflor disappears from the environment faster than widely-used alternatives like neonicotinoids, the agency said.

However, pesticides are not always applied according to the label. Even some licensed pesticide applicators take shortcuts, allowing the chemicals to drift onto nearby crops or ignoring the warning labels altogether.

For example, according to NC Department of Agriculture data from June, Ricardo M. Aldape, a pesticide applicator for Wendell Garret Johnson’s peach farm in Candor,  in Montgomery County,   applied a pesticide to blooming parts of peach trees, resulting in a bee kill in nearby hives. The label stated the pesticide should not be applied to blooming, pollen shedding or nectar producing parts of plant if bees may forage during this period.

Aldape agreed to pay $500 for using a pesticide in a manner inconsistent with its labeling.