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House | May 29, 2014 | Committee Room | House Environment Committee

Full MP3 Audio File

We’ll call the environment committee to order. I’d like to thank the sergeant at arms for getting the room ready today. Beale Bass, Joe Cook, Martha Gadson, and Charles Goodman. Thank you for the job you do. We have some pages today. Samantha Naler from Sampson county, Representative Brisson’s her sponsor. Greer Paulson from Wake County. Representative Stam. Minasia Smith from Gaston County, Representative Earl. Courtney Jo Sampkins from Henderson County, Representative McGrady. The first bill we’re going to have today is House Bill 1166, clarify gravel underwater storm water laws, Representative Samuelson. [SPEAKER CHANGES] Thank you, Mr. Chairman. Members of the committee, this early morning, those of you who are also on ERC have seen some of this before but you get to see it again. Last year in House Bill 74, we took this substance called gravel, normally referred to as gravel, and it had been previously designated as built-upon area in the language in our statute. And we moved it and said, well you know, it’s not always impervious. Sometimes it’s pervious, so let’s not call it built-upon area. There were some of us that dissented to that, and so we said in the meantime we’ll do that but we’ll have the ERC study it. So the ERC broke up into some task force. Senator Brent Jackson and I were assigned the task force of studying gravel. The first thing we learned is when we showed up for our first public hearing and task force meeting was this is a really hot subject. Because we had I think 15 different groups show up to tell us their thoughts on what constitutes gravel, whether it’s pervious or not, and how it should be regulated. And then the second thing we learned was that this stuff that I have grown up all my life calling gravel is not actually gravel. It is aggregate. And that there is a very narrow definition of what constitutes gravel but it’s sort of like Kleenex and facial tissue. We’ve all gotten in the habit of calling facial tissue Kleenex and we all sort of know that’s what it means. And so as we went through statute, we found out that the word gravel even when it’s meant to imply aggregate, is actually always used as gravel in statutes. So we decided okay, we’re not going to argue with changing the word gravel to aggregate, but we are going to have to deal with when is it pervious and when is it not pervious? So step two was to start to figure out when is gravel able to let water pass through it, so that you don’t need to do much in terms of storm water remediation, and when does the gravel really acting more like a rock or a other hard surface and not allowing the water to go through it, and therefore it does need storm water provisions. So we went out and we did I think three or four days of on-site, every conceivable thing, in sunny days, rainy days, everything we could think of. And what we concluded was that no one’s ever done a study to determine exactly which applications will allow water to go through and which applications won’t allow water. But the one thing we did conclude was that there are times when it needs to be concerned a built-upon area and times when it does not need to be considered a built-upon area. So what we have in front of you is a bill that takes gravel, which we now all know is any form of this aggregate, and moves it back into the built-upon area calculation. However, it’s only going to be calculated for built-upon area to the degree that it actually does allow water to go through it. But since no one’s got a really clear study on that, we have also charged NC State to do a study to measure when is it actually going to let water go through it and when is it not. And it’s going to include things like the most important thing, which is what is the dirt like that’s under it? Which is why it works better in sandy soils than it does in clay soils. How deep is it? How is it applied? How is it maintained and what’s going over the top of it on a regular basis? So the bill before you basically says gravel is not always pervious or impervious so therefore we’re going to call it built-upon area and we’re going to do a study to help determine for those people who are applying it or who are inspecting it to have some sort of sense of how they need to measure it for storm water purposes. And staff, if I missed something, because it’s early in the morning and I did a lot of yard work this morning before I got in here, that did not involve gravel or aggregate. Did I miss anything?

Questions.Any questions from the committee. Representative Harris. [SPEAKER CHANGES] Thank you Mr. Chair. At the appropriate time, I’d be delighted to give a motion for a favorable report. [SPEAKER CHANGES] Any other questions? Representative ?? [SPEAKER CHANGES] Thank you, Mr. Chair. Representative Samuelson, I thought I understood this bill. And I thought it was going to eliminate ?? and actually it ?? built-upon area. [SPEAKER CHANGES] Correct. What we determined was that, the reason it had at one point thought about eliminating this built-upon area because there was a misperception that gravel is always pervious. One thing that everybody who we met with agreed was that gravel is not always pervious and therefore there are times when it’s going to have to be considered built-upon area. [SPEAKER CHANGES] Okay, that brings up two questions. My house was built 15 years ago. The first thing is, my gravel driveway, which is almost the same area as my house, in front of my house, I don’t believe I would ?? build a house on that small lot I have, and it is sandy soil by the way, at the beach. So you’re saying in this bill, would make it, it would double the size of my built-upon area and may prevent people from building on a lot that’s a certain size. If this is considered a built-upon area. [SPEAKER CHANGES] Actually, in that particular case, it would help you. Because one of the things we had when we passed the bill that changed it to non-built-upon area last year was people who do redevelopment said but wait a minute. If we used to have, they were using the example of old mills but we could use your example of a house. If you had a house that’s clearly impervious and built-upon area and gravel that had been for storm water purposes considered usually built-upon area and now you said it’s not? And you’re going to go redevelop? Then you’re redeveloping your standard that for built-upon areas only the house, which means you’re then more limited on redevelopment, particularly in-fill. They found urban in-fill all of a sudden what was constituted as previously built-upon so they were grandfathered, got cut in half. Does that make any sense, because rather than both the structure and the gravel area being grandfathered as built-upon area so that if you flatten it all and want to go up, all of that constitutes built-upon area, all of a sudden the change in the language said the gravel portion is not built-upon area, and if you flatten it, you’re going to have to put storm water procedures in place for this previously graveled area. So what we actually found were people who were redeveloping were saying that it was hurting them to call it not built-upon area. Now if this new development, if you’re going in a new development and you have an empty lot, and you want to not have to count the gravel areas as built-upon area, yes this could count as built-upon but that’s what was being done anyway. And so what we’re actually offering is an opportunity for not all of it, particularly if it’s on sandy soil, to be considered built-upon area. [SPEAKER CHANGES] Follow up. [SPEAKER CHANGES] Follow up. So what I’m understanding is that what I’m reading is not what actually happens. In other words, it says that gravel is not, built-upon area does not include gravel. Part of this bill. I’m really confused now. So, then ?? area not including. ?? so it will include gravel. [SPEAKER CHANGES] It will, to the degree that it is impervious. So if you have got gravel on an area where the water is actually able to percolate through there and come off, then it is not treated as built-upon area. If you’ve got gravel installed in such a way that it acts more like an asphalt driveway, then it’s going to count like an asphalt driveway. So that’s why we’re doing the study at NC State, to determine when is gravel allowing the water to go through, as though it were dirt, and when is the gravel stopping it and acting like asphalt. [SPEAKER CHANGES] One more follow up. [SPEAKER CHANGES] Follow up. [SPEAKER CHANGES] So, what you’re saying is, this won’t impact my 15 year old house and it would not impact new construction. [SPEAKER CHANGES] It will not impact your 15 year old house. It could impact new construction but it would be better than the way it was say two years ago. Before we had the bill last year. Before the bill last year, gravel was uniformly treated as built-upon area. Okay? No matter how you installed it, unless it was in landscaping, it was being treated as built-upon area. And you had to put in storm water provisions. So that’s why some people said we want to move it over here and say it’s not built-upon area. So last year we moved it from total built-upon area in effect, to total non-built-upon area. Well that also wasn’t correct. Neither way was really correct.

It’s not always correct here, and it’s not always correct here. And so when we went this way, we created another whole new set of problems. And so what we’re doing now is saying, look, let’s recognize that it’s aggregate and sometimes the water goes through it and sometimes the water doesn’t go through it so let’s find a way to count it for what it really is. [SPEAKER CHANGES] Okay one last follow-up. [SPEAKER CHANGES] Okay. [SPEAKER CHANGES] Did one of these groups that spoke to your committee, from the development community, and what was their opinion? [SPEAKER CHANGES] Every opinion that we got said that depending on how it’s installed and maintained, it depends on how pervious it is. And we had Jeff, you can probably tell him all the groups, but we had I think every industry I can think of and some that I wouldn’t have expected represented at the group, which included the development community. [SPEAKER CHANGES] Clarifying follow up. And they were for this bill? That community was for this bill? [SPEAKER CHANGES] Yes. Yes. Because what they found out was originally they thought they liked the new way we did it because it allowed them to have more built-upon area, more area that did not need storm water remediation. But what they found out was that it was killing their ability to redevelop. It was helpful in some areas but damaging in other areas and so in the end, they all agreed, let’s figure out how pervious is it, so let’s count it the way it’s supposed to be counted. [SPEAKER CHANGES] Representative Millis. [SPEAKER CHANGES] Thank you, Mr. Chair. One thing I want to point out to the committee here is that in terms of lines 8 and 9 where it says that to the extent that the partially impervious surface does not allow the water to infiltrate. The existing statute is just fine for the purposes of what actually gave by way of the actual change that happened in the regular reform bill. If the department was actually allowing the ability to things that truly infiltrate to not be counted as built-upon area and therefore not make the new developer or someone who redeveloped to be actually treat that storm water because again if it’s not truly running off the site, and it’s infiltrating, therefore it shouldn’t be under the actual statute authority of the department. So again, I think what’s being done here is good. I have a friendly question here. I see that there’s a study that’s being implemented. My question is, is that if that department was originally enforcing the statute as needed, there wouldn’t even have been this whole aspect of the whole ??. Therefore is there any direction to the department to actually enforce the statute properly, and are they going to wait until after the study is done or are they going to do it in the interim? Because the whole issue is that there’s been a history of them treating gravel, whether it infiltrates or not, as fully impervious and as a result there’s also been if you drive across dirt that has been deemed compacted, there has been a history of they treat that as impervious as well. So as a friendly question, is there any direction to the department to actually enforce the statute properly? But I do support what you’re doing here. [SPEAKER CHANGES] Well, we all know the department is always supposed to enforce the statute properly and what we got back from them was, for instance with pervious pavement, a study had been done to tell them when you have pervious pavement, here’s how you’re supposed to do it. So they were one of the ones who said we don’t have a way of knowing and so we always defaulted to it’s totally impervious. And so they were supportive of doing the study to give them more direction and the study’s supposed to take about six months and so they should have it in before this becomes an issue. [SPEAKER CHANGES] Follow up. [SPEAKER CHANGES] ?? for Representative Samuelson. When the study is done, it’ll be reported back to the ERC and it’ll be in our hands to actually direct them to actually implement the study. The actual results of the study by way of policy changes or potential rule changes. Is that correct? [SPEAKER CHANGES] If you feel like that’s needed. The way it’s written right now, they’re supposed to enforce the statute as written, and we are going to with the study give them the tools to enforce it as written. If you come back next year and decide that somehow or another they need more direction on that, you’re free to do it. [SPEAKER CHANGES] I think Jeff can add something to that. [SPEAKER CHANGES] Thank you, Mr. Chair. I’d just point out that in addition to the results of the study going to the department, they do also come to the Environmental Review Commission on January 1st. So before the long session, the General Assembly will also have the results of that study. [SPEAKER CHANGES] Representative Wells. [SPEAKER CHANGES] I’d just like to address a couple of points. From the point of view of the development community, we have dealt with this from the watershed protection, now from storm water. What we’ve had is just a mess. We’ve had interpretations in our area that said

. . . gravel was impervious. Sometimes it is and sometimes it isn't. We accepted it when it was, and we fought it when it wasn't. I mean it's . . . it's all subject to interpretation. It's time to apply a little science to this process. When we instituted the watershed regulations, and most of my community is in a watershed area, because somehow, in that interpretation, water that flows from storm water from runoff into Lake Hickory somehow swims upstream to get into the Lake Hickory water intake. That's another area where we could use a little science. What we found is, for instance, if I wanted to build a parking lot that had peak loads: fifty percent of the time it was only at fifty percent used. So you had a peak load, I wanted to build pervious pavers with a gravel base. The regulators treated that as pervious. I got no credit for putting in grass filled pavers. That was nonsense, still is nonsense. This is a step in the direction, whether we're talking about pave- let's encourage people to do the right thing. Whether it's pervious pavement, or gravel, or pavers with, that are grass covered. We need to be getting people the tools they need to do the right thing. This may not answer all the questions, but this is certainly a step in the right direction, and I support it. [SPEAKER CHANGES]: Representative Brawley. [SPEAKER CHANGES] : Thank you Mr. Chairman. I would like to ask a few questions of the sponsor to maybe clarify, in my own mind, what I think I've heard, if that's OK. The statutes refer to gravel, and unfortunately, it's used for both gravel and aggregate, which have different characteristics in the way they allow water to pass through. [SPEAKER CHANGES]: They have less differences in the way, absolute differences, in the way they allow water to pass through. They are different substances, but the study will look at all of it; like my bags here, and there is someone from the the aggregate industry back here. Each of these bags is going to allow water to go through differently, and none of these bags is gravel. [SPEAKER CHANGES]: Got you. May I follow up? [SPEAKER CHANGES] : Follow up. [SPEAKER CHANGES]: So the way the law, or the environmental regulation, originally treated the various substances referred to under the phrase “gravel” was to assume that water would not pass through but would flow off, and was therefore impervious. We then changed the law, to say that we're going to treat gravel, and all of the substances we're referring to, as if they are completely pervious and the water's going through, and what we're trying to get to is, we''re going to look at the specific instance of what we have on the ground, and if water can pass through, we're going to say it's pervious, and if water's going to flow off, we're going to call it impervious. Which is to say we're actually going to reflect what's happening on the ground. Is that where we're trying to get to? [SPEAKER CHANGES]: You're ninety percent correct. A hundred percent correct on where we're going. The only tweak I'll say is that before the change we made last year, the statute was actually written to do what it- what we're trying to do now; but they didn't have the data to do it. But nobody realized that. And so, what happened was they were enforcing it too far to one extreme, even though it was written probably correctly. So, we're going to back- we're going to also write it correctly and give them the tools to enforce it correctly. [SPEAKER CHANGES]: Representative Harrison is recognized for a motion. [SPEAKER CHANGES] : Thank you Mr. Chair, I'd like to move for a federal report. [SPEAKER CHANGES]: You've heard the motion, all in favor say “aye”. [SPEAKER CHANGES]: Aye [SPEAKER CHANGES]: Opposed, “no”. The ayes have it. The bill be so reported. Thank you Representative Samuelson. [SPEAKER CHANGES]: Thank you. [SPEAKER CHANGES]: Next we'll have house bill 1081, Review- Agency Review of Engineering Work. Representative Millis. [SPEAKER CHANGES]: Thank you Mr. Chair, members of the committee. This bill was heard yesterday in Regulatory Reform, and from a little research, it appears that a very strong majority, probably three fourths of you all, are on Regulatory Reform. But I will briefly go over the bill for those who are not. What this bill does is exactly what the short title actually articulates, And of course the summary as well. And that is what's it's looking to do is reform the actual way that our regulatory agencies approve compliance with regulation. Even though that this is the review of engineering work, please understand, that each and every one of your constituents who desires to turn the dirt on their property, to expand their business, or to create a new business, an they have to go through any regulatory permitting agency, this bill is directly affecting them

in a very positive way and all that it's requiring to do is, to say this very simply, is that if the regulatory agency needs to distinguish between what is required by their authority in order to receive a permit from what they actually recommend from some possible changes or some corrections. So the idea of it is to uphold our protection, our regulatory protections to our environment, but to do so in a way that is both effective and efficient on behalf of the benefit of your constituents. If you have any questions I'll be happy to answer them but I definitely appreciate your support. [SPEAKER CHANGES] Your questions for the bill sponsor. If not, let's hear a motion. Representative Catlin recognized for a motion. [SPEAKER CHANGES] Approve for a favorable report. [SPEAKER CHANGES] You've heard the motion, all in favor say aye. Opposed no. The aye's have it and the bill will be so reported. House Bill 1141 has been removed from the calendar and that concludes our business and we stand adjourned.