The NC House is scheduled to vote on the Jordan Lake Rules this evening. The city of Greensboro agreed in March to share the cost with the city of Durham for a high-powered Raleigh lawyer to devise a strategy to eliminate a costly existing development rule. Kilpatrick Stockton lawyer Steve Levitas is a former staff member of the NC Department of Environment and Natural Resources. Levitas met with NC DENR staff to draft compromise legislation that would get rid of the existing development rule. He also held an early meeting with Rep. Lucy Allen, the chairwoman of the House Environmental and Natural Resources Committee, who sponsored the bill that is now expected to receive a vote on the House floor.
Full story after the jump:
After the Greensboro City Council fired City Manager Mitchell Johnson, District 4 Councilman Mike Barber took pains to let city staff know that they worked for the council and not the other way around.
“The most troubling thing is I had a legislator call me up and say, ‘Hey, Barber, I don’t understand. I thought you guys were against this,’” Barber told Assistant City Manager Denise Turner on March 3. “‘Well, we are.’ ‘Well, that’s not what your staff is saying. Your staff is prepared to pass 90 percent of this, that they’re in support of seven out of eight items.’ And that was very troubling to me.”
The council had passed a resolution in January opposing the Jordan Lake Rules in their current form.
City officials particularly object to a rule on existing developments that could require cities to install storm-water detention ponds to reduce nitrogen and phosphorous runoff into the Haw River, which feeds Jordan Lake.
To Barber’s chagrin, the city staff was pursuing a compromise to get the existing development rule eliminated or weakened instead of opposing all the rules outright.
As Water Resources Director Allan Williams explained to District 3 Councilman Zack Matheny in a March 2 e-mail: “Where the confusion is coming from is that some people are portraying staff (and Marlene [Sanford of the Triad Real Estate and Building Industries Coalition]) as against what the council has passed because we are ‘willing to compromise.’ If it is the desire of the council that compromise is not acceptable, then it is all over and was a year ago. That is not how the resolution you passed was written. It directs staff to do what we can [to] make the rules acceptable, which we are doing. If we tell the legislature that we are not willing to compromise, that will please the opposition immensely as it will be used to prove that the cities care not about water quality and should be made to bear the full brunt of the rules.”
By February, Greensboro officials and their allies among builders and municipalities in the Haw River basin had seen evidence that the NC Department of Environment and Natural Resources, or DENR, would be willing to weaken the offending existing development rule in legislation in the drafting stages for the NC General Assembly.
A bill that includes language disapproving the existing development rule is scheduled for a House vote this evening. It is widely expected to pass, after which it would go Gov. Beverly Perdue’s desk for signature and become law. If the bill were to fail, the Jordan Lake Rules will go into effect this summer. The bill’s primary sponsors are Rep. Lucy Allen, a Louisburg Democrat who chairs the House Environment and Natural Resources Committee; Rep. Pryor Gibson, a Wadesboro Democrat; and Rep. Alice Bordsen, a Democrat who represents Alamance County.
Despite the rhetorical fireworks between Barber and Turner, city council and staff had stake out the same position against the downstream environmentalists represented by the Haw River Assembly in Chatham County: Council voted unanimously to approve an interlocal agreement between the cities of Greensboro and Durham to share the cost of outside counsel to develop a strategy to weaken or defeat the Jordan Lake Rules. The council voted to pay the Raleigh law firm Kilpatrick Stockton up to $60,000.
“We’re basically paying $350 per hour, which I know is an outrageous sum, but we talked to three different large Raleigh law firms that had sophisticated environmental law sections and who had done a lot of work with the state and the legislature over the years, and we didn’t find a better rate than that,” Karen Sindelar, senior assistant city attorney for the city of Durham, told Greensboro City Attorney Terry Wood in a voice mail message. “In fact, we were quoted rates of $400-$500 by some of these folks. So anyway, what we are looking to do is see if we could split the cost with Greensboro and get a quick contract underway to do that. I am very involved in this process, and so I’m trying to keep stuff from happening that seems ridiculous, and not have the counsel do stuff that I think is not important to do. I don’t know what this would run Greensboro at this point. I doubt it would be more than probably $30,000 or $40,000 if you were splitting it with us because we’ve got a cap on what we’re going to be able to spend on this.”
By early February, Steve Levitas, a Kilpatrick Stockton lawyer and former deputy secretary of the NC Department of Environment and Natural Resources, had already met with the future sponsors of the bill that comes up for a vote on the House floor tonight. Lawmakers were eager to help opponents of the Jordan Lake Rules, as evidenced by a disapproval bill filed on Jan. 28 by Rep. Cary Allred, an Alamance County Republican who has since resigned from the House, and cosponsored by Rep. John Blust (R-Guilford).
“Steve Levitas met with certain House leaders — Lucy Allen and Pryor Gibson — and Alice Bordsen,” Sindelar wrote in a Feb. 5 e-mail update for members of the coalition of opponents. “Burlington repos met with Alice Bordsen, TREBIC met with Don Vaughan [the Democratic senator from Guilford County], and city of Durham staff met with [Triangle lawmakers] Bob Atwater and Floyd McKissick. House leadership has indicated they will handle introduction of a disapproval bill in the House, as an alternative to Allred’s, and that at this juncture, a bill that simply disapproves the Rules is the best way to start. All the legislators understood that our ‘alliance’ was willing to accept a compromise approach on the Jordan Rules, and seemed grateful for that compromise. The intent is that the ‘newer’ disapproval bill will become a vehicle for a compromise bill like ours. A straight-out disapproval bill of all Rules may also be needed in the Senate. House members are expected to discuss that with Atwater, who is head of the Senate Environment Committee.”
Levitas met with Department of Environment and Natural Resources, or DENR, staff on Feb. 10, as did Kenney McDowell, deputy director of water resources, who reported to his boss, Allan Williams, Mitchell Johnson, Terry Wood and other city officials that his sit-down with Secretary Dee Freeman “went well.”
“Steve Levitas met earlier in the day with Coleen and Robyn of DENR and they were very positive toward the things we were offering as a compromise,” McDowell wrote. “They are open to everything we have been discussing. Their preference is to rewrite the existing development rule to make it much weaker rather than go back to the Neuse and Tar/Pam rules. They really want to see an existing development rule but agreed to make it much weaker than what is proposed — some public educations, studies, etc.”
McDowell wrote that “if this strategy of substitute language makes more progress with Dee and his staff I think it is likely another disapproval bill will be introduced and then a substitute bill would be introduced by a committee chairman that will put in the things we want and DENR has agreed to. The only downside is Steve thinks DENR will have to go back to the environmental community on compromise language.”
By late February, the coalition of Jordan Lake Rules opponents had become unwieldy, and some stakeholders opposed to the rules appeared to be anxious about the negotiations process. Randall L. Billings, executive director of the Piedmont Triad Council of Governments, attempted to reassure local government leaders in a Feb. 26 memo. In the meantime, Sen. Don Vaughan and Sen. Tony Foriest (D-Alamance) had introduced a disapproval bill that was a companion bill to the House bill sponsored by Allen, Gibson and Bordsen.
“Although there have been three bills submitted to completely disallow all 13 rules under the collective title of Jordan Lake Rules, it is widely assumed that two of those bills are ‘placeholders’ and the bills’ sponsors are waiting on a compromise to be submitted in the form of an absolute bill,” Billings wrote. “Everything we hear from lobbyists, legislators and our state associations suggests a complete disapproval of the rules of the General Assembly is extremely unlikely to occur.”
Billings said Piedmont Triad Council of Government staff and local elected officials had arrived at a consensus in early December that they shared five major objections and suggestions to the Jordan Lake Rules. Among those were complete opposition to the existing development rule, extension of a deadline for municipal wastewater treatment plant upgrades until at least 2016, removal of a riparian buffer requirement from local government responsibility, ambiguous nutrient reduction targets for individual local governments, and getting the watershed designated “nutrient sensitive” as opposed to “critical water supply watershed.”
“These things have always been referred to as the ‘compromise,’ implying that local governments’ acceptance of many of the rules in exchange for relief on the above referenced rules would, in fact, be a compromise,” Billings wrote. “The use of that term recently has caused concern among some who thought another ‘deal’ was being pursued without local government support. That is not the case. The things that we are advocating for today are the same things that were agreed upon in December and have been talked about by staff for over a year.”
Opponents’ meeting with DENR Secretary Dee Freeman went better than expected, Billings said.
“Much to our delight the secretary instructed his staff to sit down with a small group of people and draft a bill that would be acceptable to all parties and that could be submitted to the legislature for approval,” Billings wrote. “At this time there are still ongoing discussions about who will sit at the table to construct the final position. Many interests want a seat at the table but too many people at the table is going to slow down the process. I am hopeful that the negotiating group will be decided soon and we can move on with getting a bill that will be acceptable to as many interests as possible. Once the negotiating group, which will be led by Steve Levitas, has reached a consensus, that information will be distributed to all local governments and interested parties for their consideration.”
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