Commission restores 16 recently nullified, years-old rules

More than a dozen longstanding coastal rules now part of a lawsuit between two state-appointed commissions will be temporarily reinstated.

The North Carolina Coastal Resources Commission during a special called meeting Wednesday morning adopted 16 emergency rules that, by being classified “emergency,” will be entered into the state Administrative Code by early January and without public input, a concern raised by at least one member of the commission.

Mary Lucasse, the commission’s legal counsel, and North Carolina Division of Coastal Management staff explained that, without the rules in place, vulnerable coastal cultural resources lose certain protections and the commission is limited in how it can fulfill its legislatively charged duties.

The Coastal Resources Commission adopts rules for the state’s Coastal Area Management Act and the Dredge and Fill Act, and establishes policies for the North Carolina Coastal Management Program.

“What we have is a situation that the Division of Coastal Management cannot rely on those rules to issue permits for development for coasts, for development in the coastal counties and to make enforcement decisions,” Lucasse said. “You can’t comment on federal consistency, or DCM on your behalf, based on these rules so what’s happened is that we have lost rules and the loss of those rules seriously impacts the system’s ability to manage the Coastal Management Program, which is given to the commission by the legislature at your purview.”

The removal of these rules, which have been around for many years, strips protections for coastal lands and waters and is a threat to public safety, she said.

The emergency rules are among 30 rules the Rules Review Commission objected to based predominately on technical wording and kicked back to the Coastal Resources Commission in early October. Shortly after the Rules Review Commission’s decision, the state’s Codifier of Rules Ashley Snyder pulled the rules from the Administrative Code.

Lawsuit seeks rules restoration, resolution

The Coastal Resources Commission and North Carolina Department of Environmental Quality responded by filing a lawsuit in Wake County Superior Court in early November.

The Nov. 3 complaint asks the court to resolve the deadlock over legal interpretations between the two commissions and restore the 30 rules.

“DCM receives permit applications almost daily, and the lack of these thirty regulations will immediately cause an impact to any applications relying on these rules,” the lawsuit states.

Lucasse on Wednesday said that she and DEQ officials selected the 30 rules to be placed back on the books as soon as possible based on the division’s use of them on a day-to-day basis.

“These 16 rules are the ones that staff feels there’s public safety reasons that you need to move forward immediately and get these back in the code so they can use them,” she said. “The other 14 will be resolved through the litigation.”

She and Division of Coastal Management Deputy Director Mike Lopazanski specifically pointed out that the emergency rules are needed to continue to protect places of significant cultural and ecological resources, including two places unique to North Carolina – Jockey’s Ridge State Park in Dare County and Permuda Island Reserve in Onslow County.

The Coastal Resources Commission submitted 132 readopted rules for the Rules Review Commission to review.

Lopazanski said that division staff had worked through many of the technical changes the Rules Review Commission requested, but that the rules commission continued to object to 30 of the rules.

The objections hinge on what the rules panel considers to be vague and ambiguous language, a need to clarify procedures and definitions, and references addressing statutory authority, according to Lopazanski.

Objections to rulemaking authority

The Rules Review Commission is a legislature-appointed, 10-member body created by the North Carolina General Assembly in 1986 that could object to, but not veto, proposed rules. A series of amendments made to the North Carolina Administrative Procedure Act in the mid-1990s shifted more power to the commission.

In 2003, rulemaking agencies were granted the right to file for court-issued judgments in cases where the commission vetoed proposed rules.

If the rules commission rejected a rule, the agency that submitted the rule had to request the rule be returned to make changes. That changed on Oct. 3 of this year with the adoption of the state budget. Language in the budget gave the rules commission additional powers, and now it’s essentially challenging the Coastal Resources Commission’s rulemaking authority.

During a special called meeting two days after the state budget went into effect, the Rules Review Commission voted to return the 30 rules to the Coastal Resources Commission. The Rules Review Commission argued that language in the proposed rules did not meet the definition of a “rule” per state statute.

DEQ and the Coastal Resources Commission argue that the rules do meet the definition because “they establish guidelines, objectives, standards and policies” for defined areas of environmental concern, or AECs, as set forth by the General Assembly.

“These rules are not newly adopted and since the 1970s and 1980s have been part of the Code pursuant to the very same statutory authority,” according to the lawsuit.

The structure of the Rules Review Commission has, for years, been subject to lengthy legal debates, and its decisions have been challenged numerous times over the years. Since the turn of the century, both the Environmental Management Commission and North Carolina State Board of Education have sued the Rules Review Commission.

In August 2020, Gov. Roy Cooper filed a lawsuit challenging legislative control of the rules commission. The governor dropped his lawsuit in October 2022.

Public hearings set on ‘stopgap’ rules

The Coastal Resources Commission will consider adopting the 16 rules as “temporary” during its Feb. 22, 2024, meeting. If approved, the temporary rules will be forwarded to the Rules Review Commission for reconsideration.

Coastal Resources Commission member Lauren Salter explained to fellow commission members that the emergency rules are a “stopgap” until the board can push temporary rules through to the Rules Review Commission and that the public is not being shortchanged in being allowed to comment on the rules.

The emergency rules have “been in place for a very long time,” she said. “This is just the most expedient, fastest way to bridge the gap between those things and I’m having trouble understanding the concern with public review since (the rules) did go through a great deal of public review. That’s how we got here.”

Public hearings on the proposed temporary rules will be hosted Jan. 9 and Jan. 10 in Onslow and Dare counties and in Morehead City.

Once the emergency rules are codified, they may be in place for up to 60 days.