This story has been updated.
A judge has ordered that more than two dozen longstanding rules used to guide coastal development and protect resources be placed back into the North Carolina Administrative Code.
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All 30 rules removed from the code in fall 2023, shortly after the N.C. Rules Review Commission kicked them back to the Coastal Resources Commission, must be plugged back into the code, Wake County Superior Court Judge William Pittman ruled last week.
Pittman also affirmed that the Coastal Resources Commission and Department of Environmental Quality have the authority to, through rulemaking, create enforceable guidelines and policies, adopt rules that give context to or aid in understanding those and other rules, and that “adverse environmental impact” is not an ambiguous term used in rulemaking.
“The NC Coastal Resources Commission is pleased that the trial court has agreed with its position that the Rules Review Commission’s objections to thirty of the CRC’s rules were without foundation,” the CRC stated in an email Tuesday afternoon. “The CRC looks forward to a return of its rules to the North Carolina Administrative Code as these rules are important components of this State’s coastal management program.”
Related: Process to restore Jockey’s Ridge protections continues
Should the Rules Review Commission appeal, the state codifier of rules may “prominently notate and identify as ‘Under Appeal’” the 30 rules “or words to that effect,” Pittman wrote in his Feb. 12 decision.
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Pittman’s ruling comes more than a year after the coastal commission and the state’s lead environmental agency filed a complaint asking the court to resolve a deadlock over legal interpretations between the two commissions and restore the rules.
The coastal commission adopts rules for the state’s Coastal Area Management Act and Dredge and Fill Act, and establishes policies for the North Carolina Coastal Management Program.
The Rules Review Commission’s objections to the rules in 2023 were largely based on technical wording.
After filing the lawsuit, the Department of Environmental Quality’s Division of Coastal Management and the coastal commission worked to temporarily restore 16 of the rules division officials described as critical to day-to-day operations.
Some of those rules pertain to enforcing protections for coastal landmarks including Jockey’s Ridge State Park in Nags Head and Permuda Island off the shores of North Topsail Beach in Onslow County.
Last November, the 13-member Coastal Resources Commission unanimously adopted a proposed permanent rule identifying Jockey’s Ridge, the tallest active sand dune on America’s eastern sea board, as a unique geological feature area of environmental concern, or AEC. The designation received overwhelming public support and protects the dune from, among other things, sand mining.
AECs are areas of natural importance that the division designates to protect from uncontrolled development.
The coastal commission submitted 132 readopted rules to the Rules Review Commission.
Historically, when the Rules Review Commission objected to a rule, the agency that submitted the rule had to request the rule be returned to make changes. If an agency did not make that request, the objection would be merely noted in the rule and that rule would remain in the Administrative Code.
That changed with the adoption Oct. 3, 2023, of the state budget that includes language giving the rules commission authority to send rules it objects back to agencies.
Shortly after the law went into effect, the Rules Review Commission voted in a special called meeting to return 30 of the Coastal Resources Commission-approved 132 rules.
The 10-member rules commission reviews and approves state agency-created rules. The North Carolina General Assembly appoints commission members, half of which are on the recommendation of the Senate pro tem, and the other half on the recommendation of the House speaker.
“The court did the right thing in reserving the legislatively-controlled Rules Review Commission’s arbitrary repeal of long-standing, common-sense rules that are essential to North Carolina’s coastal communities as they face increasingly intense storms and sea level rise from climate change,” Southern Environmental Law Center Senior Attorney Julie Youngman stated Monday afternoon in response to a request for comment.
The law center filed an amicus brief on behalf of the North Carolina Coastal Federation, which supported restoration of the rules. The Coastal Federation publishes Coastal Review.
In addition to protecting Jockey’s Ridge State Park and archaeological remains on Permuda Island, the rules the judge ordered to be returned to the code designate and manage categories of coastal resources, dictate policies for shoreline erosion control and development of ocean-based energy facilities, and guide permitting for coastal development.
