OBAR Legislative Briefing

June 15, 2015 Legislative Briefing

CAMA Update – from NC CRC
Draft Sea Level Rise Report Released for Public Comment – The NC Coastal Resource Commission’s Science Panel has completed a draft five-year update of its 2010 report on sea level rise in North Carolina. The draft report was released in late March for public review and comment. The panel’s initial draft report was completed in December 2014, and forwarded to a technical peer review group for comment. The draft report and comments received to date are available for review.
Comments on the report may be submitted via email to Tancred Miller, DCM’s coastal and ocean policy manager, at Tancred.Miller@ncdenr.gov , through Dec. 31.
Required by Session Law 2012-202, the draft report provides estimated rates of sea level rise along the North Carolina coast during the next 30 years. The report uses data collected at five tide gauges along the North Carolina coast. The gauges are at Duck, Oregon Inlet, Beaufort, Wilmington and Southport. According to the report, historical data shows that sea level is rising across the entire coast of North Carolina. The data also indicate that the rate of rise varies depending on location, with the highest rates occurring on the northern coast, primarily due to greater rates of land subsidence, or sinking, in the Outer Banks. Using the most current research on global sea level rise, the panel used the tide gauge data to project potential future rates of sea level rise at each location.
Following the public comment period, the report will be finalized in early 2016 and delivered to the N.C. General Assembly by March 1, 2016.

State Approves Consistency Submissions for Offshore Seismic Surveys – In April, the NC Division of Coastal Management approved two consistency submissions from Spectrum Geo, Inc. and GX Technology for seismic surveying activities in the Atlantic Ocean that represent an initial step in the exploration for oil and gas resources off the North Carolina coast. The division found both proposed projects to be consistent with the relevant enforceable policies of North Carolina’s coastal management program, with the following conditions and recommendations:
• As a condition of concurrence for both projects, the division will require a pre-survey meeting with representatives from the state divisions of Marine Fisheries and Coastal Management to review and discuss precise survey transects and timing in order to avoid, minimize, and mitigate any possible fisheries impacts or conflicts.
• Where practical, relocate proposed survey transects to avoid South Atlantic Fishery Management Council-designated Habitat Areas of Particular Concern, and important foraging, spawning and refuge areas.
• Conduct surveys at times that avoid potential use conflicts with offshore fishing tournaments, major recreational fishing areas, and seasonally-focused fishing.
• Follow the mitigation measures required by the Final Atlantic Geological and Geophysical Activities Programmatic Environmental Impact Statement that the U.S. Bureau of Ocean Energy Management established in 2014 for offshore oil and gas exploration.

Spectrum Geo, Inc. and GX Technology proposed to conduct separate Marine Geophysical Surveys via 2D seismic surveying off the North Carolina coast to gather geological and geophysical data that could provide information about the feasibility of future development of offshore oil and gas resources. A more thorough description of each of the projects, along with copies of the letters of concurrence sent to each company, is available.
The surveys would take place entirely in federal waters outside North Carolina’s coastal zone. State law does not require coastal development permits for projects outside the state’s coastal zone, but the federal Coastal Zone Management Act requires federal applicants to coordinate with the state for any proposed activity that affects land use, water use or any natural resource within the zone.

CRC Proposes Use of “Development Line” as Alternative to Static Vegetation Line
The CRC has approved for public hearing draft rule language that allows the use of a locally-established “development line” as an alternative to the “static vegetation line” and static vegetation line exception procedures currently in use for beachfront building setbacks in areas that have previously received large-scale beach nourishment projects.
A “development line” would be a line established by a local government that represents the seaward-most allowable location of oceanfront development, provided the development or structure can meet the setback measured from the first line of stable natural vegetation. Under the development line concept, if vegetation has successfully established seaward of its prior location, buildings and accessory structures could conceivably move seaward up to the approved development line as long as minimum setbacks are met. Existing rules require local governments to receive an exception to the “static line” based on a demonstrated commitment to beach nourishment and/or other erosion control alternatives (e.g. terminal groins) in order to allow development seaward of the setback that existed at the time of beach nourishment. Local governments would need to request approval for a development line from the CRC. Communities could choose to establish a development line, or retain the existing static vegetation line and exception process.
In addition to the development line concept, the proposed rule amendments also amend the commission’s existing static line exception rules. Under current rules, a static vegetation line must be established for any beach fill project of 300,000 cubic yards or more, a five-year waiting period is required before a local government can request an exception to the static line, and structure sizes are limited to 2,500 square feet when constructed seaward of the static line. The proposed rule amendments would eliminate the five-year waiting period and the limitation on structure size. The current rule has presented many challenges for oceanfront condominium communities and the sale of individual units, particularly in the very southern Outer Banks areas of the NC coast with long established beach nourishment projects.

CAMA Land Use Planning Rule Changes Approved for Public Hearing
After hosting two regional land use planning workshops to seek input from local elected officials and planning staff on their experiences with the CAMA Land Use Planning Program, DCM staff has recommended several amendments to the 15A NCAC 7B Land Use Planning Guidelines in response to the input received from local governments.
These amendments include changes to streamline the land use plan amendment and update process, reduce the amount of analysis required, and shorter timelines for state review and certification of land-use plans and updates. The changes are expected to significantly reduce the regulatory burden on local governments, while maintaining coastal management standards for local planning activities. The rule amendments were recently approved by the CRC, and will be sent to public hearing with a proposed effective date of Feb. 1, 2016.

CRC Approves Draft Report for Periodic Review of CAMA Land Use Planning Rules
The Coastal Resources Commission recently approved a draft report regarding the periodic review of 15A NCAC 7B CAMA Land Use Planning Requirements for submission to the legislative Rules Review Commission, or RRC.
N.C. Gen. Stat. §150B-21.3A, adopted in 2013, requires state agencies to review existing rules every 10 years. The division’s rules will be reviewed on a schedule established by the RRC. As rules become available for public comment, they will be available for review here: http://rulesreview.ncdenr.gov/
The first of the division’s rules to be review are the CAMA land use planning rules.  The remaining rules will be reviewed in 2017.
The division is required to evaluate each of the existing rules and make an initial determination from one of these three classifications:
• Necessary with substantive public interest – the agency has received public comment on the rule within the past two years or the rule affects the property interest of the regulated public, and the agency knows or suspects that any person may object to the rule.
• Necessary without substantive public interest – the agency determines that the rule is needed, and the rule has not had public comment in the last two years. This category includes rules that identify information that is readily available to the public, such as an address or telephone number.
• Unnecessary – the agency determines that the rule is obsolete, redundant or otherwise not needed.
After division review of 15A NCAC 7B, along with a public comment period, four rules were designated as Necessary with substantive public interest. One rule was designated as Necessary without substantive public interest and two rules were designated as Unnecessary.
The RRC will review the final report and public comments to determine if it agrees with the agency classification of its rules. The RRC may change a classification of a rule to “Necessary with substantive public interest” but does not have the authority to declare a rule as “Unnecessary.” The RRC will send a final report to the Joint Legislative Administrative Procedure Oversight Committee (APOC) for consultation. The final determination on an agency’s rules becomes effective when the APOC reviews the report or on the 61st day after receiving the report from the RRC if the APOC does not meet. The APOC may disagree with the commission’s determination and recommend to the General Assembly that the agency conduct a review of the rule the following year. Rules designated as “Necessary without substantive public interest” will remain in the N.C. Administrative Code and rules designated as “Unnecessary” will be removed. Rules designated as “Necessary with substantive public interest” must be readopted following the usual rulemaking procedures.

DCM Awarded Funding for Pumpout Grant Program – The U.S. Fish and Wildlife Service Clean Vessel Act grant program recently awarded $116,000 to DCM to continue funding the marine sewage pumpout grant program  .The program, established as a result of the federal Clean Vessel Act of 1992, provides financial assistance to marinas and other boat-docking facilities for the installation and renovation of pumpout and dump stations. Since its establishment in 1995, the program has awarded more than $634,938 in grants for 99 pumpout projects to 88 marinas, including several municipal governments, and one state government operation.
The Clean Vessel Act provides grant funds for the construction, replacement, renovation and maintenance of facilities that assist recreational boaters in properly disposing of on-board septic waste. The program also provides information and education about the benefits of pumpout systems.

Public Access – DCM awards annual matching grants to local governments for projects to improve access to the state’s beaches and waterways under the Public Beach and Coastal Waterfront Access Grant Program. DCM’s northern district is an 11-county area that includes the ocean beach and inland shorelines of Currituck and Dare counties as well as the inland shorelines of Camden, Pasquotank, Perquimans, Chowan, Gates, Hertford, Bertie, Washington and Tyrrell counties. Below is a review of a couple of projects in our area that have recently received a grant award in the northern district:

Dare County. The county is constructing a regional beach access and oceanfront park on a 6.67-acre site in the village of Rodanthe. The program is providing $130,000 in matching funds toward a restroom and picnic pavilion. PARTF is also contributing funds. Approximately $53,000 has been awarded to the Town of Kitty Hawk to expand beach access parking along Lillian Street and approximately $14,000 has been awarded to the Town of Nags Head to install a kayak launch at the Causeway Estuarine access site.
Currituck County. The county has completed construction of a bathhouse at the Corolla Village Road beach access across from the Currituck Beach Lighthouse in historic Corolla Village. The program provided $130,000 in matching funds for the project.
Camden County.  The county will soon begin construction of a park that includes shoreline, boating and restroom facilities on a 2.34-acre site along the Pasquotank River in southern Camden County. PARTF and the N.C. Wildlife Resources Commission are also contributing funds. The program has awarded approximately $140,000 in matching funds toward improvements.
Tyrrell County.  The county has been awarded $85,500 in matching funds to provide shoreline and site improvements at the 1.3-acre Veterans’ Park on the Scuppernong River across from the Town of Columbia. The town will soon complete installation of a canoe/kayak launch and access ramp off the public boardwalk on the Scuppernong River at the Pocosin Lakes National Wildlife Refuge. The program has awarded approximately $60,000 in matching funds toward the project.

Legislative Update – CAMA Bills of interest in the current session of the General Assembly:
S160 – Enhance Safety & Commerce for Ports/Inlets
•         Part 1 makes changes to the Shallow Draft Navigation Channel Dredging and Lake Maintenance Fund. Provides that, in addition to current sources, the fund may consist of money contributed by a non-state entity designated for a particular dredging project. It also allows the DENR secretary to waive the non-state cost-share requirement for dredging projects to alleviate navigational emergencies or supplement or leverage funding from the U.S. Army Corps of Engineers. The bill also would reserve $4 million of the fund for Oregon Inlet dredging, reserve $950,000 for costs associated with exploring options for acquiring lands adjacent to Oregon inlet and managing existing and future Outer Banks transportation corridors. The bill also reserves $250,000 for DENR to update the Beach and Inlet Management Plan, to include a recommended schedule for ongoing inlet maintenance.
•         Part 2 establishes a Deep Draft Navigation Channel Dredging and Maintenance Fund.
•         Part 3 Directs the State Ports Authority to enter a Memorandum of Agreement with the U.S. Army Corps of Engineers, allowing for nonfederal funding of dredging and maintenance at the state ports. Part 3 also directs DENR to enter a similar memorandum of agreement with the U.S. Army Corps of Engineers for nonfederal funding of dredging of Oregon Inlet.
•         Part 4 authorizes the N.C. Department of Administration’s secretary to acquire federal land for maintenance of deep draft navigational access to the Morehead City port.
•         Part 5 would request approval from National Oceanic and Atmospheric Administration to adjust the boundary of the Zeke’s Island NERR by moving the western boundary 200 feet seaward, and would remove that area from the reserve. A corresponding amount of acreage would be added to the northern boundary of the island from adjacent acreage at Fort Fisher State Recreation Area. In addition, Part 5 would remove the southern component of the New Inlet Dam (“the Rocks”), which “impedes the natural flow of water between the Cape Fear River and the Atlantic Ocean.” Funds to implement this section may come from the Deep Draft Navigation Channel Dredging and Maintenance Fund.
•         Part 6 would exempt the DENR waiver of non-state cost-share requirements for dredging from the state’s contested case provisions.
•         Part 7 would establish a Coastal Waterways User Identification Number for certain vessels that are 24 feet or more in length. An annual fee for the number would be established according to the vessel length, not to exceed $1,250. Funds generated will be credited to the Shallow Draft Navigation Channel Dredging fund.
•         Part 8 directs the CRC to amend its sandbag rules as follows: (1) Allow the placement of temporary erosion control structures on a property that is experiencing coastal erosion even if there are no imminently threatened structures on the property, provided the property is adjacent to a property where temporary erosion control structures have been placed;  (2) Allow the placement of contiguous temporary erosion control structures from one shoreline boundary of a property to the other shoreline boundary, regardless of proximity to an imminently threatened structure; (3) The termination date of all permits for contiguous temporary erosion control structures on the same property shall be the same and shall be the latest termination date for any of the permits; (4) Allow for the replacement, repair or modification of damaged sandbags that are legally placed with either a current permit, or with an expired permit whose status is being litigated by the property owner.
•         Part 9 allows Dare Co. to use up to $3 million of occupancy taxes per fiscal year for maintenance of county waterways.
•         Part 10 provides that Oregon Inlet is considered a transportation corridor.
•         Part 11 gives coastal counties the authority to remove abandoned vessels from navigable waters.
S453 – Regulatory Reform Act of 2015
Directs the CRC to amend its sandbag rules as follows: (1) Allow the placement of temporary erosion control structures on a property that is experiencing coastal erosion even if there are no imminently threatened structures on the property, provided the property is adjacent to a property where temporary erosion control structures have been placed.  (2) Allow the placement of contiguous temporary erosion control structures from one shoreline boundary of a property to the other shoreline boundary, regardless of proximity to an imminently threatened structure. (3) The termination date of all permits for contiguous temporary erosion control structures on the same property shall be the same and shall be the latest termination date for any of the permits. (CRC directed to adopt temporary rules by Dec. 31 this year, then permanent rules).
H141 – Stormwater/Flood Control
Authorizes cities to use stormwater management programs to implement flood reduction techniques such as purchasing properties at high risk of flooding, elevating existing structures, and retrofitting structures to reduce flood risk. Only applies to cities in a county where the county has a population of 275,000 or greater and at least one city with a population of 225,000 or greater.
H345 – Currituck Co/Remove Abandoned Vessels
Gives Currituck Co. authority to remove abandoned vessels.
H346 – Counties/Public Trust Areas
Gives counties authority to enforce ordinances within public trust areas on ocean beaches.
H388 – Dare Co Local Option Sales Tax
Allows Dare Co. Board of Commissioners to levy a local sales tax of .25% to be used for dredging. A special election must be held and a majority of voters must approve the tax.
H591 – Cities/Public Trust Areas
Gives coastal cities authority to regulate, restrict, or prohibit the placement, maintenance, location or use of structures that are uninhabitable and without water/sewer service for more than 60 days and unreasonably restrict the public’s right to use the state’s ocean beaches.
H760 – Regulatory Reform Act of 2015
• Requires the Department of Insurance, the Building Code Council, and the CRC to jointly study how flood elevations and building heights for structures are established and measured in the coastal region of the state, and to specifically consider how flood elevations and coastal building height requirements affect flood insurance rates and how height calculation methods might be made more consistent and uniform in order to provide flood insurance rate relief. Requires the agencies to engage a broad group of 20 stakeholders, including property owners, local governments, and representatives of the development industry. Results shall be submitted to the General Assembly no later than Jan. 1, 2016.
• If a rule is amended so that it imposes a less stringent burden on regulated persons, no fiscal note is required.
• Include coastal wetlands in measurement of protective riparian buffer in Neuse and Tar-Pamlico River Basins.

Senate Bill 25 – Zoning/Design and Aesthetic Controls Sent to the Governor
On June 9th, the NC House approved SB 25   by a strong bi-partisan vote of 98-17. The bill now goes to the Governor for his signature. The bill passed the Senate on April 27th by a similar bi-partisan vote of 43-7. Both Senator Cook and Representative Tine supported the bill. The bill prohibits local governments from imposing building design/zoning regulations higher than the NC Building Code for one and two-family dwelling except under certain circumstances.
The NC Home Builders Association has been working on the passage of this bill for several years. The House vote is the end of a four-year journey which saw previous versions of this bill pass the Senate in 2011 and the House in 2013 but never both bodies during the same session. Obstacles unrelated to the merits of the bill prevented its enactment during previous versions.
The bill and was opposed by the NC League of Municipalities and the Metro Mayors organization but, after their proposed changes were overwhelmingly rejected by the committee this week, no amendments were offered during the floor debate.

NAHB Webinar on HUD Changes – from NCHBA
On Wednesday, June 24th from 2 to 3 p.m. the National Association of Home Builders is sponsoring a webinar to prepare builders for HUD lending changes taking effect August 1st. The webinar will inform builders on how to work proactively with lenders and settlement stakeholders to avoid unnecessary closing delays.
On Aug. 1, the Good Faith Estimate, Truth in Lending and HUD-1 Settlement Statements are being replaced by the Consumer Finance Protection Bureau’s new integrated disclosure forms, the “Loan Estimate” and the “Closing Disclosure.”

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