After more than two years of trying to get the Area of Environmental Concern reinstated for Jockey’s Ridge, a designation that was stripped away in October 2023, the Coastal Resources Commission has finally received the Rules Review Commission’s approval, much to the relief of the nonprofit Friends of Jockey’s Ridge support group.

The Friends’ board of directors wrote in a letter dated Dec. 30, 2025, that it “welcomes the recent decision” by the Rules Review Commission made during its regular meeting Dec. 18 to restore the area of environmental concern designation for Jockey’s Ridge State Park.

Jockey’s Ridge, what is often called the “tallest living sand dune system on the Atlantic Coast” was saved from development in 1973. In 1974, the geographical feature was declared a National Natural Landmark. A year later, in 1975, the General Assembly allocated funds matched with federal funds to create what is now a 420-acre state park in Dare County, with the sand dune system as the centerpiece, according to NCpedia, a resource managed by the state government and N.C. Department of Natural and Cultural Resources.

Development activities in and around the state park boundaries have been regulated by the administrative rules of the Coastal Resources Commission since the designation of Jockey’s Ridge as a unique geologic feature area of environmental concern in 1984, according to the Division of Coastal Management, which serves as staff to the Coastal Resources Commission.

The to and fro between the two commissions began Oct. 5, 2023, when the Rules Review Commission removed from the North Carolina Administrative Code language that designated Jockey’s Ridge as an area of environmental concern and established its use standards, and then returned the text to the Coastal Resources Commission. Removing the rule from the administrative code also removed the rule’s legal authority.

After the Rules Review Commission returned the text in October 2023, the Coastal Resources Commission adopted emergency rules to reestablish the area of environmental concern and use standards that went into effect Jan. 3, 2024, and then on April 25, 2024, approved moving forward with permanent rulemaking. The temporary rules expired May 13, 2024, when the Rules Review Commission objected to the text.

The Coastal Resources Commission then adopted the permanent rule on Nov. 14, 2024, but the next month, on Dec. 19, 2024, the Rules Review Commission objected to the rule “on the basis of failure to comply with the public noticing provisions of the Administrative Procedure Act,” which staff said the necessary steps were taken to satisfy this objection, the division explains in past meeting materials.

The Coastal Resources Commission adopted permanent rules designating Jockey’s Ridge as an area of environmental concerns with use standards which are nearly identical to the original 1984 standards on Aug. 27, 2025.

“The proposed rule was written in three parts,” staff said in meeting documents. The first is a description, which describes the Jockey’s Ridge and its importance. Second describes the area of environmental concern boundary and where a map of the boundary can be found, and last, use standards.  

The Rules Review Commission objected to the language Oct. 27, 2025, “stating that paragraph (a) ‘Description’”’ is unnecessary and is not the same as a ‘“’designation’”’ as required under” general statute.

The Coastal Resources Commission took up the revised language during its Nov. 18, 2025, meeting, ahead of the rules commission’s Dec. 1, 2025, deadline.

The final rule reads: “Given the status of Jockey’s Ridge as a State Park, State Nature Preserve, complex natural area, and an area containing a unique geological formation as identified by the State Geologist, the Coastal Resources Commission hereby designates Jockey’s Ridge as an Area of Environmental Concern pursuant to” general statute.

“After years of uncertainty for this important protection, we are in full support of this decision which aligns with our mission to protect Jockey’s Ridge,” the Friends board wrote.

The Coastal Resources Commission approved last week revised text that is meant to satisfy the latest objection from the Rules Review Commission regarding Jockey’s Ridge’s designation as an area of environmental concern.

The Coastal Resources Commission, or CRC, has been trying to get this text sorted since October 2023, when the Rules Review Commission objected to and removed 30 rules, including those for Jockey’s Ridge protections, as part of the 10-year periodic rules review process.

According to the the North Carolina Department of Environmental Quality’s Division of Coastal Management, which carries out the rules and regulations set by the CRC, the text that had been up for review a few years ago was almost identical to what had been approved in 1984 for the centerpiece of Jockey’s Ridge State Park in Dare County.

Part of the text the Rules Review Commission most recently objected to reads: “(a) Description. Jockey’s Ridge is the tallest active sand dune (medano) along the Atlantic Coast of the United States. Located within the Town of Nags Head in Dare County, between US 158 and Roanoke Sound, Jockey’s Ridge represents the southern extremity of a back barrier dune system which extends north along Currituck Spit into Virginia.”

The CRC at its regular business meeting in Beaufort Hotel was briefed about the rules commission’s latest objection Wednesday during the annual rules review update, and again Thursday before voting unanimously to submit the amended text to the rules panel.

Daniel Govoni, policy analyst with the Division of Coastal Management, said Wednesday that a general statute directs staff to review and identify any rules that are unnecessary, burdensome or inconsistent. Rules that are considered necessary, go through the rules review process, and that includes being run through the Rules Review Commission.

Govoni said that just recently, the Jockey’s Ridge area of environmental concern permanent rules the Coastal Resources Commission approved Aug. 27 was sent to the Rules Review Commission and “they again have objected.”

The reason this time, he continued, “is because the rule was split up into three categories: (a) being description, (b) being boundaries and (c) the use standards. They basically said that the description was unnecessary.”

When Coastal Resources picked up the discussion Thursday, Govoni reiterated that the rule was drafted into three parts, with a description explaining Jockey’s Ridge and its importance, and a boundary describing the area of environmental concern boundary and an accompanying map.

Govoni stated that the Rules Review specifically objecting to “the paragraph (a) description,” and that it “was not the same as the designation as under general statute.”

Coastal Resources was left with two options with a deadline of Dec. 1: either amend the rule to address the Rules Review objection, or submit a written response explaining why the rule won’t be changed.

Govoni said staff came up with the following proposed language as a way to meet the requirement: “Designation. Given the status of Jockey’s Ridge as a State Park, State Nature Preserve, complex natural area, and an area containing a unique geological formation as identified by the State Geologist, the Coastal Resources Commission hereby designates Jockey’s Ridge as an Area of Environmental Concern pursuant, as required under general statute.”

The amendment also included adding that “The AEC is located within the Town of Nags Head in Dare County, between US 158 and Roanoke Sound” to the boundaries explanation.

The Coastal Resources Commission’s legal counsel, Sarah Zambon, explained that the legal counsel for the Rules Review Commission was consulted on the proposed permanent language but, “just like I don’t speak for all of you, RC Council doesn’t speak for the RRC, but they have reviewed this language.”

Zambon continued that “the main issue was with the description of it being the tallest sand dune along the Atlantic Coast.”

Coastal Resources Chair Renee Cahoon pointed out that “this description just became a problem in August. Amazing. Amazing. After 40 years.”

About Jockey’s Ridge rules

The more than two-year back-and-forth between the two commissions began in early October 2023 over 30 rules undergoing the 10-year periodic review process.

“Development activities in and around the state park boundaries have been regulated by the administrative rules of the Coastal Resources Commission since the designation of Jockey’s Ridge as a Unique Geologic Feature Area of Environmental Concern in 1984,” division documents explain.

When the rules commission reviewed the 30 rules the division submitted, including Jockey’s Ridge as an Area of Environmental Concern and use standards, the rules panel removed the rules from the North Carolina Administrative Code and returned them to the Division of Coastal Management.

Coastal Resources filed a lawsuit shortly after contesting the Rules Review’s decision to remove the 30 rules, which is still in litigation.

The CRC then adopted emergency and temporary rules reestablishing the area of environmental concern and use standards that went into effect Jan. 3, 2024, and expired May 13, 2024, which the Rules Review Commission also objected.

Coastal Resources decided to move forward with permanent rulemaking on April 25, 2024, and adopted the permanent rule Nov. 14, 2024. The rules commission objected to the proposed permanent rule on Dec. 19, 2024, for failing to comply with public notice requirements. Staff said in documents that the terms of this objection had been satisfied.

A Wake County Superior Court judge in February of this year ruled in favor of Coastal Resources in the lawsuit that directs the codifier to “immediately return” the rules to the administrative code. Rules Review has since filed an appeal challenging the ruling and the Coastal Resources is due to submit a brief in response by Dec. 12.

The Coastal Resources Commission took up the subject again Aug. 27 and adopted permanent rules designating Jockey’s Ridge as an area of environmental concern and use standards. The Rules Review Commission objected on Oct. 30 to the recently submitted text for using the word “Description” because it is “not the same as a ‘designation’ as required under state law.”

The Coastal Resources Commission was given Dec. 1 as a deadline on the new proposed designation, which is an attempt to clarify the language going forward, Govoni said Thursday. In the time since the judge ruled that the Jockey’s Ridge rules would be returned to the administrative code, the division decided to amend and clarify the language.

If the suggested language meets final approval, the existing rule would be repealed and replaced with this new version.

Coastal Review will not publish Thursday and Friday in observation of the Thanksgiving holiday.

Coastal Resources Commission members will hear from the North Carolina Department of Environmental Quality Secretary Reid Wilson before settling in for the two-day regular business meeting this month, when they will be updated on the latest rules review objection to designating Jockey’s Ridge as an area of environmental concern.

The meeting is set to start at 1 p.m. Wednesday, Nov. 19, when Wilson is on the agenda to speak. The meeting will resume at 9 a.m. Nov. 20, ahead of the public input and comment period scheduled for 9:05 a.m. At the chair’s discretion, comments may be limited to three minutes per person. The public may attend the commission meeting in person or join online.

Jockey’s Ridge, the centerpiece of Jockey’s Ridge State Park, is located in Dare County and is home to the tallest living sand dune system on the East Coast, according to North Carolina State Parks.

Development in and around the state park boundaries has been regulated by Coastal Resources Commission rules since the designation of Jockey’s Ridge as a Unique Geologic Feature Area of Environmental Concern in 1984, according to state documents.

During the periodic rules review process in October 2023, the rules designating Jockey’s Ridge as an Area of Environmental Concern, or AEC, and establishing use standards were returned to the agency by the Rules Review Commission and removed from the North Carolina Administrative Code.

In response, the Coastal Resource Commission adopted emergency and temporary rules that went into effect Jan. 3, 2024, to reestablish the AEC and use standards. The rules expired May 13, 2024, when the Rules Review Commission objected to the temporary rule.

The commission moved forward with permanent rulemaking on April 25, 2024, and adopted the permanent rule on Nov. 14, 2024. The Rules Review Commission on Dec. 19, 2024, objected to the rule “on the basis of failure to comply with the public noticing provisions of the Administrative Procedure Act” and staff have taken the necessary steps to be in compliance and satisfy this objection, according to meeting documents.

The Coastal Resources Commission on Aug. 27 of this year adopted permanent rules designating Jockey’s Ridge as an AEC with use standards that are “nearly identical to the original 1984 standards,” document state.

The Rules Review Commission objected On Oct. 30 to paragraph a “Description,” which they deemed as “unnecessary and is not the same as a ‘designation’ as required” under general statute.

The Coastal Resources Commission must respond to the objection by Dec. 1. Members can either amend the paragraph to address the Rules Review Commission’s concerns or submit a written response indicating that the rule will not be amended.

Other action items include to consider approving:

• The Topsail Beach Management Plan.
• Variance requests for artificial turf in the 30-foot buffer at Carolina Beach, and for sandbag alignment and size on Ocean Isle Beach.
• Proposed amendments to rules on septic tanks seaward of the vegetation line, and on alternative sandbag design use to protect public roads.

Also on the agenda are updates on the boundary recommendations, erosion rates and setbacks for Inlet Hazard Areas, information on the 2025 hurricane season, and have a discussion on threatened structures.

The in-person only Coastal Resources Advisory Council will meet ahead of the commission at 10 a.m. Nov. 19 at the hotel.

A full meeting agenda and briefing materials are available on the commission’s website. Times indicated on the agenda for individual items are subject to change.

The Environmental Management Commission voted unanimously Thursday to send a rule outlining health-based standards for three per- and polyfluoroalkyl substances to the state Rules Review Commission.

The 15-member commission also wrapped up the rulemaking process to “clarify” the definition of wetlands, as directed by a summer 2023 session law. The draft language now heads to the Office of Administrative Hearings. Per the session law, the rule is exempt from the Rules Review Commission.

During the environmental commission’s meeting held in Raleigh and streamed virtually, members voted on the draft rule that specifically targets PFOA, PFOS, and GenX in groundwater, which supports about half of drinking water in North Carolina.

Under the rule that is now expected to go before the rules commission at its Oct. 30 meeting, permitted releases of PFAS to groundwater will be limited. The rule also establishes goals for cleaning contamination in groundwater and ensures residents whose drinking water exceeds contamination limits receive alternative water supplies.

Comments the N.C. Department of Environmental Quality received on the rule through a public comment period late last year overwhelmingly supported the rule, but, as Commissioner Dr. Jackie MacDonald Gibson noted Thursday, the public also raised concerns that the rule did not set standards for additional PFAS.

“It’s a very emotional issue,” Gibson said. “I went to the (public) hearing in Wilmington and people there, their families have been directly affected by PFAS exposure to the point that some people were afraid to have their kids drink water at school. I think a lot of people are going to be glad that we’re moving forward with this. They’re going to wish we were doing more.”

The environmental commission’s groundwater and waste management committee last year voted to omit five of the eight compounds DEQ staff originally presented to be included in the rule.

The committee chose to focus on PFOS and PFOA, which the U.S. Environmental Protection Agency classifies as likely carcinogens, and GenX, a compound specific to Chemours.

Commissioner Tim Baumgartner, who chairs the groundwater and waste management committee, explained that the compounds that were omitted – PFBS, PFNA, PFHxS, PFBA and PFHxA – are being regulated at the practical quantitation limit, or PQL.

PQL is considered the base line in testing laboratories.

“It’s not that we’re not regulating PFAS. It is a matter of what the quantitative limit is for remediation, or what the target level is,” he said.

Commissioner Robin Smith said she regretted that the commission did not adopt health-based standards for all eight PFAS as initially presented by DEQ.

“It would have actually helped some land owners and some responsible parties who need to clean up groundwater by providing them with a health-based standard that is above the PQL,” Smith said. “I’m going to vote for these. I think this is a good rule, but to me, I can’t follow the reasoning of dropping the other five when, in fact those would have made the rules less stringent, but still would have maintained a health-based standard for those other five.”

Environmental Commission Chair JD Solomon responded, saying that instead of using a health-based equation, one that is subject to change, for the compounds that were omitted, the commission “defaulted to PQL.”

“Keep as much PFAS out of the water as possible,” he said. “So, while PFAS is being debated at the national level, and whatever level, we decided as a body to keep it as stringent as possible, even for cleanups.”

If approved by the rules commission next month, the rule would become effective Nov. 1.

A proposed draft rule requiring monitoring and development of PFAS minimization initiatives for dischargers into surface water will be on the commission’s water quality committee’s agenda in November.

Members of that committee voted 4-2 Wednesday to include the draft rule on their meeting scheduled Nov. 12. The proposed rule would require industries that directly discharge compounds into surface water and all significant industrial users that discharge to publicly owned treatment works to monitor their releases of PFOA, PFOS and GenX.

If the committee approves the rule, it will go to the full commission for consideration Nov. 13.

During staff comments, the commissioners were informed that DEQ is now requiring Chemours to expand the number of private wells eligible for PFAS contamination sampling to about 14,000 additional residences in New Hanover, Brunswick, Columbus and Pender counties.

Related: DEQ requires Chemours to expand PFAS well water testing

The expanded area was identified through additional data analysis conducted by the state and Chemours. Chemours’ Fayetteville Works plant in Bladen County discharged PFAS, including GenX, for decades directly into the Cape Fear River, ground and air.

Wetlands definition rule

The General Assembly with a June 27, 2023, session law directed the commission to adopt a rule consistent with language in the statute that read “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” federal regulations.

Sue Homewood with the Division of Water Resources explained Thursday to the commission that, “We had the session law in 2023, the EMC requested that we move forward with this rule amendment, even though we were implementing the rule and are implementing the session law already.”

Around the same time this session law was drafted and making its way through the state legislature, the U.S. Supreme Court ruled in favor of an Idaho couple, the Sacketts, who sued the Environmental Protection Agency for putting a stop on work to backfill what the federal agency argued was wetlands.

The Sackett v. EPA decision on May 25, 2023, changed the definition of “waters of the United States,” which are navigable waters protected under the Clean Water Act. The definition now excludes noncontiguous wetlands, or those not connected to navigable waters. The EPA aligned its definition with the court case effective Sept. 8, 2023.

When the North Carolina General Assembly put the 2023 session law through that summer, commissioners worked with staff on how best to proceed. The matter was on pause between April 2024 to January of this year, when the water quality committee approved the language to go to the full commission. Members approved in March the proposed text rule and moving ahead to public comment, which was open April 15 to June 30. A public hearing was held June 26.

Homewood said 134 written comments were submitted and 13 oral comments were presented at the hearing, which are in summarized in the hearing officer’s report.

Of all the comments, she continued, only one was in favor of the rule amendment.

“In general, the comments opposed to the rule amendment were concerned about loss of wetland protection in North Carolina,” Homewood said, such as what the rule means for flooding, resiliency and wildlife habitat.

The public also commented that the state is investing in mitigation and flood resiliency that these wetlands could help provide, and there were some comments stating that the General Assembly should not dictate a rule making body on how to implement rules.

The wetlands definition rule was approved with 10 voting for the rule and commissioners Smith, Gibson, Dr. Jennifer Orme-Zavaleta, Dr. Ann Chelminski and Dr. Ilona Jaspers voting against. In a separate vote, the hearing officer’s report passed 13-1, with Orme-Zavaleta voting against no and Gibson abstaining.

Homewood said the next step is to submit the rule to the state’s Office of Administrative Hearings, then to General Assembly, which would be the 2026 session. After that, it needs to be approved by the EPA, because this definition is part of the state’s water quality standards.

Karen Higgins with the water planning section said that the EPA has 60 days to approve, 90 days to disapprove, or nothing happens if they take longer. If the EPA disapproves of the standards change, the agency sends it back to the state.

Solomon said he had been asked what could be done about the rule and the bottom line is “our rules have got to be consistent with state laws. And so while this is a little unusual to say, they did their action, we have to clean up our rules now to make sure the definitions fit.”

He continued by pointing out that the rulemaking process “is more or less procedural” and there are concerns but the commission has to comply with the state laws.

Baumgartner reiterated that it was a statutory directive from the General Assembly and the commission is following the Administrative Procedures Act by making this rule change, which Commissioner Kevin Tweedy acknowledged, but said he’s hoping that the state can disconnect from the federal definition.

“North Carolina has unique resources that I think a lot of people, obviously, from the comments, agree it should be protected. I think we can do that protection in a smart way that that takes into account everybody’s concerns and issues with wetlands. But I think connecting it to the (federal definition) and keeping it that way is just not a good long-term policy,” Tweedy said.

Smith, a longtime attorney, called this “bad policy” and part of the reason is that nothing at the federal level is about which or whether these wetlands are important for ecological or other purposes.

“The only issue at the federal level is federal jurisdiction, and that’s driven by the Commerce Clause of the United States Constitution, and it’s driven by the language of the Clean Water Act,” Smith said. “It’s a jurisdictional issue at the federal level. It has nothing to do with assessment of the value of these wetlands.”

Managing the wetlands is primarily a state responsibility, which is why “it’s a mistake to tie state decisions about the value and protection of wetlands to a federal jurisdictional issue,” Smith said.

Aside from bad policy, she said, it’s bad legislative practice, because there’s a section in the session law that causes the entire session law language to sunset as soon as this rule is adopted.

“What the legislature did not change,” Smith said, is the existing definition of waters of the state in a statute, which will continue to be in effect after the session law expires.

She reiterated a point Solomon made that the commission’s rules cannot be in conflict with state law. “But unfortunately, what the legislature has given us is a situation that will create a conflict with state law.”

Smith voted against approving the rule, saying that she understands “the realities of situation, but between the policy and the legislative process and the, in my view, misuse of the session law in this way, without clarifying a statute, makes this an easy vote against for me.”

The Coastal Resources Commission on Wednesday afternoon unanimously adopted a rule that restricts development within Jockey’s Ridge State Park.

The rule the 13-member commission adopted mandates how and where sand may be moved within the park and establishes the park’s area of environmental concern, or AEC, boundaries.

AECs are areas of natural importance that the division designates to protect from uncontrolled development.

Under the rule, a Coastal Area Management Act, or CAMA, permit is required if more than 10 cubic yards of sand is moved in one year within the AEC. Sand that is removed must be placed within an area of the park designated by the N.C. Division of Coastal Management in consultation with the state Department of Natural Cultural Resources’ Division of Parks and Recreation.

And, sand within the AEC cannot be altered or prevented from moving freely by development activities “except when necessary” to maintain or construct a road, residential or commercial structure, accessway, lawn, garden, or parking area unless approved by the park’s management plan.

The rule will now go to the state Rules Review Commission for approval.

In the fall of 2023, that commission removed the rule along with more than a dozen other CRC-adopted longstanding rules from the North Carolina Administrative Code and kicked them back to the coastal commission, a move that triggered a legal fight between the two commissions.

Earlier this year, a Wake County Superior Court judge ruled all 30 rules be returned to the administrative code.

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.

MANTEO — Amidst the tedium of a generally uneventful two-day meeting of the state Coastal Resources Commission last week, embers of prior tensions flared anew when Commissioner Jordan Hennessy contended that the panel had not properly authorized its lawsuit seeking to restore a protective environmental rule for Jockey’s Ridge.

The commission voted 9-3 against a motion Hennessy had advanced to withdraw from ongoing legal battle against the Rules Review Commission. Only Coastal Resources Commissioners Robbie Yates and Steve King voted with Hennessy, who took issue with how the lawsuit had been authorized.

“The crux of the issue here is that there was never a formal motion made, never a formal second made, or a formal vote to file a lawsuit against the Rules Review Commission,” Hennessy told the panel May 1 during the second day of the meeting. “And for something of that significance, I think it should have had a vote of this full commission to file suit against another state agency.”

After claiming he had been “stonewalled” by the commission and its legal counsel Mary Lucasse in seeking information, Hennessy, who was appointed to the board in 2023 by then-Insurance Commissioner Mike Causey, made a motion to direct counsel to “go ahead and withdraw that lawsuit.”

In her terse response, Lucasse detailed her answers to Hennessy’s “multiple requests,” including providing records of her authorization to bring the case.

“And then, as you know, information has been given about the lawsuit at every single legal update that we’ve had since then,” she continued. “I’ve kept you advised, and this commission has continued to be aware of and approve the steps that council has taken with that litigation from the beginning.”

The Coastal Resources Commission filed the lawsuit in late 2023 after 30 rules it had approved through a required periodic rules review process were removed from the Administrative Code, a move made shortly after the Rules Review Commission that fall kicked them back to coastal commission. The lawsuit asked the court to reinstate all 30 rules.

The 10-member Rules Review Commission, which is appointed by leaders of the GOP-controlled North Carolina General Assembly, argued those 30 rules were vague or inconsistent with state statutes. 

After filing the lawsuit, the Coastal Resources Commission voted to temporarily restore 16 of the rules state Division of Coastal Management officials said were critical to day-to-day operations.

One of those longstanding rules designated Jockey’s Ridge as an area of environmental concern, or AEC.

In April 2024, State Geologist Kenneth Taylor confirmed that Jockey’s Ridge is a unique geologic formation that qualified it as an AEC.

A public hearing on a proposed amendment to the coastal commission’s rule governing the Jockey’s Ridge AEC was held at the end of its April 30 meeting, with four people speaking in support of the proposed amended rule. The proposed rule is nearly identical to the original 1984 rule, which protects the landmark from incompatible development and sand loss. Public comment is open through June 2.

Nags Head Mayor Ben Cahoon, one of the commenters, delivered a sharp rebuttal of the Rules Review Commission’s rationale for abruptly revoking the AEC protection in 2023, asserting the Coastal Resources Commission’s “righteous” role in protecting Jockey’s Ridge while condemning the “absurdity of the process” in which the coastal commission had been forced to spend valuable time and resources.

“But now, ideological forces that value unrestrained and excessive commerce supported by industries that are biased against environmental regulation want to erode your authority,” Cahoon told coastal commissioners.

In February, a Wake County Superior Court judge ruled in the coastal commission’s favor, and the rules commission appealed. It’s unclear how quickly the dispute can be resolved.

Related: Judge restores state’s 30 erased coastal development rules

“The CRC’s actions relating to the rules designating Jockey’s Ridge as an AEC and establishing use standards are related to the rules that are part of the RRC’s appeal of the Superior Court’s March 3 amended order (of the lawsuit,)” the coastal commission said last week in an email response to Coastal Review.

“The appeal has not yet been docketed in the Court of Appeals,” the email stated. “After Appellant RRC files the record for the appeals, the parties will submit briefs to the COA (Court of Appeals.) Only after the appeal is fully briefed will the Court of Appeals decide whether to schedule oral argument. The time required for the Court Appeals to issue an Opinion varies greatly from a few months after an appeal is fully briefed to more than a year.”

Coastal Resources Commission Chair Renee Cahoon, also in addressing Hennessy’s contention, said that the lawsuit was a direct result of the legislature’s budget provision that allowed the the codifier of rules to withdraw the rules. The rules pertinent to the Jockey’s Ridge AEC designation, “just disappeared from existence — 30 or more at a time,” she said.

“It made a major impact on the people that we serve in the state of North Carolina and the 20 coastal counties,” Cahoon said. “This was a decision that was not taken lightly. It was not taken unadvisedly, and it was taken in response to, basically, the disappearance of rules.”

Hennessy is a former top aide to Republican Sen. Bill Cook who represented Dare County in the legislature. He later became a businessman with county affordable housing development contracts and dredging project contracts about which a federal grand jury sought county records and subpoenaed six county commissioners late last year.

Hennessy also questioned that it took nearly a year for the lawsuit to be filed after it was authorized as well as the expenses incurred dealing with the protracted legal action.

“It’s by law that we have to go through the rules review process,” he said. “If you don’t like it, ask the legislature to change the law, but it’s to the point of that the legislature has had to appropriate two and a half or a quarter of a million dollars to the Rules Review Commission to defend its lawsuit against us.”

Commissioner Lauren Salter responded that the state Division of Coastal Management staff tried to “resolve (the Rules Review Commission’s) nitpicking issues” repeatedly, and it wasn’t the Coastal Resources Commission that picked the fight.

“We sought relief for the people of North Carolina, so that they would know what rules were in play and not lose rules overnight,” she said. “That’s why the lawsuit was filed after 307 days. We tried everything.”

Coastal towns and large homeowner associations representing beachfront properties now have the choice to install a controversial alternative to sand fencing on ocean-facing shores.

The North Carolina Coastal Resources Commission last week amended a rule to allow those entities to apply for a permit to place wheat straw bales on ocean shorelines as a means to protect and build up beachfront dunes.

The rule, which will now go to the state Rules Review Commission for final approval, limits the use of wheat straw bales to government organizations and HOAs with more than 1 mile of oceanfront shoreline.

Use of wheat hay bales is restricted to those groups until the state gains a better understanding of their impacts to wildlife, including sea turtles, shoreline environment, and their efficacy.

In a 7-5 vote in favor of the rule, some on the Coastal Resources Commission, or CRC, reiterated concerns that have been repeatedly raised in recent years by wildlife officials and environmental organizations.

Those groups, including the North Carolina Wildlife Resources Commission, N.C. Audubon, North Carolina Wildlife Federation and Southern Environmental Law Center, argue additional studies need to be done to understand the potential impacts of wheat straw bales to shoreline habitat and the animals that rely on that habitat.

“I just would like to say I think we’re opening ourselves up to a lawsuit,” Commissioner Lauren Salter said during the CRC’s April 30 meeting in Manteo. “I think Southern Environmental Law Center is going to definitely pursue it based on the comments that we received.”

The effectiveness of wheat straw bales on an oceanfront shore was initially tested as an alternative to wooden sand fencing in 2015 on Figure Eight Island, a privately owned island north of Wilmington.

The North Carolina Division of Coastal Management issued a Coastal Area Management Act permit to two properties to initial a pilot study on the New Hanover County island.

The bales eventually became covered with sand, but, within a few months, they were washed away in a storm, according to the division.

Wheat straw bales were not allowed on a North Carolina beach again until 2023, after Ocean Isle Beach officials requested approval to place them on a portion of the town’s oceanfront shore.

Ocean Isle Town Administrator Justin Whiteside reminded commissioners last week that the town made the request because sand fencing was hard to acquire in the months following the COVID-19 pandemic.

Town officials noted the pilot project on Figure Eight Island and wanted to mimic it, he said.

“It was successful in some areas,” on Ocean Isle, Whiteside said. “Then we did have a storm and some of it washed away. Others, it’s still covered up and, as far as I’m aware, it’s still there just all covered up with sand.”

Division officials have said they do not expect a significant uptick in the use of straw bales because they tend to cost more than traditional sand fencing and they would need to be replaced more frequently than fencing.

Coastal Resources Commissioner Jordan Hennessy last week said that his position on the rule amendment remained the same as those he had expressed during a previous meeting.

Hennessy questioned whether the rule, by omitting private property owners from being able to apply for a permit to install wheat straw bales, is constitutional.

“I’ll be voting against the rule because I don’t believe it’s constitutional,” he said.

The CRC’s legal counsel, Mary Lucasse, advised that the rule amendment is not unconstitutional.

“I don’t see anything unconstitutional that’s jumping out on me, and I don’t actually understand your argument, commissioner, as to why you think it’s unconstitutional,” she said. “We do a lot of rulemaking that focuses on situational things, and we sometimes try things, as we did with (wheelchair-accessible) mats, with local governments being able to do it first, and we have not drawn any challenges to that based on constitutionality or other things, and I don’t see an issue in that.”

Under the amended rule, wheat straw bales cannot impede public or emergency vehicle access or be installed in a manner that endangers nesting sea turtles, which is similar the sand fencing rule.

Installation of wheat straw bales will require consultation with the U.S. Fish and Wildlife Service and the state Wildlife Resources Commission through permit application review. Ties or bindings on bales must be removed to reduce debris and the possibility of wildlife entanglement.

Straw bales will be limited to 10-foot-long sections, which is the same requirement for sand fencing, and can be no wider than 2 feet or higher than 3 feet. Bales can not be more than 10 feet waterward of the first line of stable, natural vegetation, erosion scarp or toe of a frontal dune.

Sections of straw bales, sand fencing, or Christmas trees, which may also be used to trap sand, must be spaced 7 feet apart. Nonfunctioning, damaged bales or stakes that have moved from their alignment must be repaired or removed from the shore.

When the North Carolina Coastal Resources Commission meets later this month in Manteo, members are expected to hear from the public their thoughts on reinstating protections for Jockey’s Ridge.

The commission meeting is to begin at 1 p.m. April 30 and resume at 9 a.m. May 1 in the Dare County Government Center. The public hearing on Jockey’s Ridge is scheduled for 4 p.m. April 30.

A public comment period is scheduled for 9:15 a.m. May 1. Comments may be limited to 3 minutes per person. The public can attend in person or view the meeting on the North Carolina Department of Environmental Quality’s YouTube channel.

The Coastal Resources Advisory Council will have an in-person meeting at 9 a.m. April 30, before the commission’s regular meeting begins.

Related: Jockey’s Ridge protections one step closer to approval

The commission designated in 1984 Jockey’s Ridge, an expansive sand dune system within Jockey’s Ridge State Park in Nags Head, as a unique geologic feature area of environmental concern.

During the periodic rules review process, the Rules Review Commission in October 2023 dropped 30 rules, including the Jockey’s Ridge designation, giving as reasons a lack of statutory authority, unclear or ambiguous language, that it was unnecessary and failed to comply with the Administrative Procedure Act. The rules were then removed from the state administrative code.

In the time since, the Coastal Resources Commission has been going through the rulemaking process to reinstate the “unique geological feature” that is the centerpiece of Jockey’s Ridge State Park as an area of environmental concern.

The public hearing for the proposed permanent rule is a step toward restoring the area of environmental concern designation for Jockey’s Ridge in Nags Head.

In addition to the public hearing, members are to consider approving beach management plans for Ocean isle Beach and for Carolina Beach, and to vote on the fiscal analyses on a proposal to allow nonpermanent structures on decks and boardwalks on urban waterfronts, and on proposed amendments to ocean hazard area exceptions.

Commissioners plan to hold discussions on human-made ditches and ways to provide information to potential buyers about specific properties and ocean hazard areas of environmental concern.

A full meeting agenda and briefing materials can be found on the the NCDEQ website. Times indicated on the agenda for individual items are subject to change.

NEW BERN — The commission that makes decisions about coastal development is moving ahead with public comment on proposed language to reinstate Jockey’s Ridge protections previously in place for decades.

During the Coastal Resources Commission’s first meeting of the year, which was held Wednesday and Thursday in the DoubleTree New Bern Riverfront, members unanimously approved setting a public hearing for a proposed permanent rule that would restore the area of environmental concern designation for Jockey’s Ridge in Nags Head.

What is often referred to as the largest sand dune system on the Atlantic Coast, the geological feature is the centerpiece of Jockey’s Ridge State Park, which was established in 1975. The Coastal Resources Commission designated Jockey’s Ridge in 1984 as a “Unique Geologic Feature Area of Environmental Concern” and put laws in place to manage activities in and around the park boundaries.

Daniel Govoni, policy analyst with the Division of Coastal Management, reminded the commission Thursday afternoon that it must go through the permanent rulemaking process because, during the periodic rules review, the designation for Jockey’s Ridge was removed from the North Carolina Administration Code. The division acts as staff to the Coastal Resources Commission.

The Rules Review Commission dropped in October 2023 the rule language, along with 29 other rules, in large part because of the wording. The Rules Review Commission’s objections centered on what it described as a lack of statutory authority, unclear or ambiguous language, that it was unnecessary and failed to comply with the Administrative Procedure Act.

“As the CRC explained in its verified complaint objecting to the removal of its rules from the North Carolina Administrative Code, ‘the removal of the rules at issue deprives DCM of the ability to determine whether a permit is required or available to protect a fragile coastal natural and culture resource areas, placing in immediate danger the stability of natural sand dunes in the coastal zone due to improper sand removal and development, including at Jockey’s Ridge,’” a division representative explained Friday in an email about the effort to get the rules reinstated.

The commission last year adopted emergency and temporary rules reestablishing Jockey’s Ridge as an area of environmental concern. The commission went through the permanent rulemaking process, approved the fiscal analysis, held a public hearing and then adopted the permanent rule in November 2024.

In December, the Rules Review Commission objected to the permanent rule again, claiming that the division didn’t follow the rules for a public notice.

Govoni said the division has now complied with the public hearing rules and can move forward with the public hearing.

While work was underway to reinstate these protections, the Coastal Resources Commission had a lawsuit in the works against the Rules Review Commission about the 30 rules that were removed from the code in the fall of 2023.

Related: Judge restores state’s 30 erased coastal development rules

Wake County Superior Court Judge William Pittman ruled on Feb. 12, “in the light most favorable to Defendants, that there is no genuine issue as to any material fact and that Plaintiffs are entitled to judgment as a matter of law” and that the “Rules Review Commission is ordered to approve Plaintiffs’ 30 rules.”

The defendant was ordered to return the 30 rules to the code. If there is an appeal, the Rules Review Commission “can identify those rules as ‘Under Appeal’ or words to that effect.”

During the meeting Thursday afternoon, the Coastal Resources Commission’s legal counsel, Mary Lucasse, shared that the Rules Review Commission had decided to appeal but didn’t know the time frame. She said that the trial had been scheduled for March 10 but that it was later changed.

Reid Wilson honors Mike Lopazanski

The commission was able to take a quick break from the agenda Thursday morning to welcome North Carolina Department of Environmental Quality Secretary Reid Wilson and recognize former Division Deputy Director Mike Lopazanski with the Order of the Long Leaf Pine Award.

Commission Chair Renee Cahoon introduced NCDEQ Secretary Wilson, who she said “brings a wealth of experience in environmental protection, land conservation and government and nonprofit leadership.”

“I’ve been in this job for two months, and I’m loving it every single day,” Wilson told the commission, adding NCDEQ covers “everything from the coast to the mountains and in between.”

Wilson was on his way to Morehead City to visit the divisions of Coastal Management and Marine Fisheries headquarters there when he stopped in New Bern.

Wilson praised department staff for helping him transition to NCDEQ after serving from 2021 to 2024 as secretary of the state’s Department of Natural and Cultural Resources. Gov. Josh Stein appointed Wilson to the NCDEQ secretary position and is waiting to be confirmed by the Senate.

“The Department of Environmental Quality benefits every North Carolinian’s life, every single day, in a lot of ways,” Wilson said, explaining that the agency protects air quality, water quality and human health and helps advance economic prosperity by funding water infrastructure projects “and not only making sure that people have safe drinking water, but that our rivers are clean, and also building the capacity of the business to come and grow and for those communities to thrive.”

Wilson commended the Coastal Resources Commission members for their dedication to protecting the coast. “I think all of us view our coastal resources as this incredible treasure,” he said, “and you all play a key role.”

While Wilson had the podium, he presented Lopazanski with the Order of the Long Leaf Pine. Lopazanski retired in December as deputy director of the division after more than 30 years in state government.

“This is the state’s highest honor society, and it is a huge accomplishment,” Wilson said. He thanked Lopazanski for his work to coordinate key acquisitions for the N.C. Coastal Reserve and National Estuarine Research Reserve system, and with the Coastal Resources Commission “to adopt common sense and science-based rules. Thank you for your dedication to your job and to the coast and to the people North Carolina.”

Before Wilson and his staff resumed their trip to Carteret County, he told Coastal Review that while the two departments are similar in size, staff and number of divisions, a difference is that Natural and Cultural Resources has 100 sites around the state that it oversees, whether it’s the zoo, parks or historic sites, while NCDEQ has around 10 offices around the state and they’re offices or labs.

“But the other thing that’s different is that our work at DEQ affects everybody. Making sure the air and the water and the land are clean and healthy,” he said. “So our work is in every county, in every town, whether it’s a drinking water plant or Brownfields cleanup or a permit for a business to come in and create jobs.”

When it comes to the ongoing uncertainty that surrounds federal funding, Wilson said his people “don’t actually know yet” about any particular programs within the agency that will be impacted.

“Every day we’re monitoring whether we have access to these federal grants,” he said. “I can’t tell you which ones are available, but we’re checking it every day and waiting to see how the Trump administration responds to various court orders that would require the release of these funds.”

Also during the meeting

Members approved a variance request from at The Shoals Club on Bald Head Island for a sandbag structure double the size of the allowed 6 feet by 20 feet. Petitioners requested permission to build a 12-foot-by-40-foot sandbag structure at the site in Brunswick County that’s subject to erosion.

The other variance from a petitioner to build in the setback in North Topsail Beach was put on hold while more information is collected.

Amendments to two different rules for ocean hazard areas were approved as well as the periodic review schedule for the Coastal Area Management Act land use planning public comment and final report.

Nelson Paul, who petitioned for a rule to add to the definition of estuarine waters “All the waters’ described herein includes man-made ditches” but withdrew his request because he plans take a different approach.

The board heard during public comment on a proposed rule to allow hay bales be used as sand fencing concerns from an attorney with Southern Environmental Law Center and a biologist form the North Carolina Wildlife Resources Commission that the bales would impede sea turtle nesting and could introduce invasive species.

The North Carolina Environmental Management Commission is to decide during its next meeting in Raleigh whether to begin the process of setting new groundwater quality standards for three herbicides and a fungicide.

The commission is scheduled to meet at 9 a.m. Thursday, Jan. 9, in the Ground Floor Hearing Room of the Archdale Building. The public can attend in person or stream the meeting online.

The water allocation committee is scheduled to begin the day of meetings at 9 a.m. Wednesday, followed by the air quality committee, steering committee, and groundwater and waste management committee. These committees will discuss the rules review process.

The water quality committee will close out the day of committee meetings at 2:45 p.m. Wednesday, when members are expected to hear and discuss concepts on minimizing per- and polyfluoroalkyl substances, or PFAS.

The meetings will be streamed online or the public can attend in person in the Archdale building.

The Division of Water Resources director is recommending to the full commission that new groundwater quality standards replace the interim maximum allowable concentrations, or IMACs, established in January 2024 for bentazon, fluometuron, and metolachlor, all herbicides, and boscalid, a fungicide.

Also during the full commission meeting, members are to consider next steps for existing rules going through the periodic review process that address groundwater standards, underground storage tanks, public hearings, and primary recreation standards for Class B waters. State law requires rules be reviewed every 10 years.

The Environmental Management Commission oversees and adopts rules for several divisions of the Department of Environmental Quality, including the Divisions of Air Quality, Land Resources, Waste Management and Water Resources.

Agendas and meeting materials for all meetings are available on the commission website.

North Carolina Coastal Resources Commission members, during the their November meeting, are expected to consider adopting rules to reinstate Jockey’s Ridge as an area of environmental concern.

The two-day meeting, which will also include an update on Cape Hatteras National Seashore, from Superintendent Dave Hallac begins at 3 p.m. Nov. 13 at the Ocean Isle Beach Town Hall, 111 Causeway Drive. The public may attend the meeting in-person or watch by web conference. The meeting is expected to reconvene at 9 a.m. Nov. 14.

The Coastal Resources Advisory Council will meet in-person only Nov. 13, at 1 p.m., also at the town hall.

An in-person public comment period is scheduled for 4:30 p.m. on Nov. 13.

Development activities in and around Jockey’s Ridge State Park in Nags Head have been regulated since 1984, when the commission designated the sand dune system as a unique geologic feature area of environmental concern.

In October 2023, the Rules Review Commission returned during the periodic rules review process the rules designating Jockey’s Ridge as an area of environmental concern. The rules were removed from the state Administrative Code. The commission then adopted emergency and temporary rules reestablishing the area of environmental concern and use standards, according to division documents.

The emergency rules went into effect on Jan. 3, and expired May 13, when the Rules Review Commission objected to the temporary rule. The commission decided to go ahead with permanent rulemaking on April 25, which designated Jockey’s Ridge as an area of environmental concern with use standards that are nearly identical to the original 1984 standards.

The Division of Coastal Management held a public hearing Oct. 15 at Jockey’s Ridge State Park. There were 17 oral comments all in support of the redesignation, and the division received 32 written comments also in support.

Also during the meeting Nov. 13-14, the commission is expected to consider adopting a handful of rules related to the permitting process, the fiscal analysis for the existing bridges and culverts replacement general permit, and consider oceanfront setback variances in Avon, Nags Head and Oak Island, riparian setbacks in Holden Beach, and impervious surface limits in Figure Eight Island  

A full meeting agenda and briefing materials can be found on the commission’s website. Times indicated on the agenda for individual items are subject to change.

The commission that establishes rules for coastal development held a public hearing Tuesday in Nags Head as part of its process to reinstate protections for Jockey’s Ridge.

The state’s Rules Review Commission removed in October 2023 the area of environmental concern, or AEC, designation, because it questioned whether Jockey’s Ridge is a unique geological formation.

The Coastal Resources Commission has proposed a rule to redesignate Jockey’s Ridge as an AEC, “as well as use standards to protect the AEC from incompatible development and loss of sand,” according to the website.

The Division of Coastal Management, which takes direction from the Coastal Resources Commission, is accepting public comment until Nov. 4 on the proposed rule.

Comments can be submitted to Division of Coastal Management, 400 Commerce Ave. Morehead City, NC 28557 or to DCMcomments@deq.nc.gov. Include “Jockey’s Ridge” in the subject line.

Jockey’s Ridge is the tallest active sand dune along the Atlantic Coast of the United States. The protections put in place since 1984 stemmed from concern that commercial sand mining could have a negative impact on the integrity of the dune system and surrounding environment, according to the division.

All 17 who spoke out at the hearing in the conference room at the state park asked that the AEC protections be reinstated during the meeting, according to an Outer Banks Voice report.

Coastal Resources Commission Chair Renee Cahoon told the about 40 who attended the public hearing that the AEC protections had been “dropped without even our knowledge or consent by a … power (the RRC) to just arbitrarily set the rules. So we’re trying again for the fourth or fifth time to be adopt this,” the Voice reported.

After the hearing, Cahoon continued her criticism of the Rules Review Commission to the Outer Banks Voice, suggesting nepotism was at play, and noting that the chair, Jeanette Doran, is the “President of the Senate’s daughter” and the commission has “the power to drop bills.”

Division of Coastal Management’s Policy & Planning Section Chief Daniel Govoni told the Voice that the meeting was to allow division staff to prepare a summary of comments and submit those to the Coastal Resources Commission for consideration during its Nov. 13-14 meeting in Ocean Isle Beach.

North Carolina’s chief administrative law judge and former head of the state’s environmental regulatory agency has eliminated a state cap on the amount of a chemical solvent some municipal wastewater treatment plants discharge.

Chief Administrative Law Judge and Director of the Office of Administrative Hearings Dr. Donald van der Vaart revoked permit limits of 1,4-dioxane for wastewater treatment plants that discharge the chemical substance, one the federal Environmental Protection Agency classifies as a likely human carcinogen, into the drinking water sources of tens of thousands of people.

North Carolina Department of Environmental Quality officials did not follow the letter of the law written in state statutes when they calculated discharge limits and established an enforceable water quality standard for 1,4-dioxane, van der Vaart ruled. In his Sept. 12 decision, van der Vaart also said DEQ erred by considering the chemical substance a carcinogen.

“The [Environmental Protection Agency] has characterized 1,4-dioxane as ‘likely to be carcinogenic to humans,’” he wrote. “The EPA has not characterized 1,4-dioxane as ‘carcinogenic to humans.’”

DEQ has 30 days to appeal van der Vaart’s decision.

A North Carolina Department of Justice spokesperson said by email Monday state attorneys are reviewing the decision with DEQ.

In its 2023 draft revised risk determination for 1,4-dioxane as a chemical under the Toxic Substances Control Act, the EPA “proposes that exposure to drinking water sources from surface water that is contaminated by 1,4-dioxane released from industrial facilities contributes to the unreasonable risk” to human health.

The compound is used primarily as a solvent in chemical manufacturing.

Wastewater treatments plants operated by the cities of Greensboro, Asheboro and Reidsville receive 1,4-dioxane emitted from textile, chemical and plastics manufacturers. Those wastewater treatment facilities then discharge the chemical into surface waters that flow downstream to the Cape Fear region, an area plagued with drinking water contamination from industrial releases of per- and polyfluoroalkyl substances, or PFAS.

PFAS are widely used, human-made chemicals that can be found in a host of consumer products, including stain-resistant carpets, fast food packaging, and water-resistant apparel. Studies of possible human health effects of PFAS, including those found in the Cape Fear River, the drinking water source for tens of thousands of North Carolinians, have found that the chemical substances can cause damage to the liver and immune system, low birth weight, and increase risk of some cancers.

In August 2023, DEQ’s Division of Water Resources issued Asheboro a National Pollutant Discharge Elimination System, or NPDES, permit limiting the city wastewater treatment plant’s release of 1,4-dioxane.

The city sued, challenging the state’s power to include the 1,4-dioxane water quality standard in the permit and arguing it faced excessive financial burden because of the new limits.

The cities of Greensboro and Reidsville joined in the lawsuit after both were issued notices of violation for 1,4-dioxane discharges in November 2019 and required to consent by special order to include discharge limits in their draft NPDES permits.

Brunswick County, Cape Fear Public Utility Authority and Fayetteville Public Works Commission intervened in the case, asserting that upstream 1,4-dioxane dischargers placed an undue financial burden on them to sample drinking water sources for the chemical and try and reduce the level of consumption of it to their customers.

In his ruling, van der Vaart noted that a regulatory impact analysis, which assesses possible financial impacts of proposed rules, states that costs associated with controlling discharges of 1,4-dioxane “… are anticipated to be prohibitively expensive for local governments and the citizens served by public utilities,” but acknowledges “ongoing costs benefits associated with the monitoring and treatment of 1,4-dioxane are likely to be considerable.”

Van der Vaart was appointed DEQ secretary in 2015 by then-Gov. Pat McCrory. In 2017, under the leadership of then-Secretary Michael Regan, van der Vaart was placed on administrative leave. Van der Vaart later resigned from DEQ.

Following growing public outcry in recent years, both the EPA, now headed by Regan, and DEQ have begun to address the releases of some of these compounds – there are more than 10,000 – into drinking water sources.

Earlier this year, EPA announced final maximum contaminant levels limiting a half-dozen PFAS in drinking water.

DEQ’s proposed draft rule outlining health standards for PFOA, PFOS and GenX in groundwater is heading for public comment after a unanimous vote of the state’s Environmental Management Commission.

Groundwater supports about half of drinking water supplies in North Carolina.

The commission decided to omit five PFAS initially included in the proposed draft rule.

The board is still hashing out DEQ’s proposal to establish surface water rules for all eight PFAS. Earlier this month, the commission’s water quality committee instructed DEQ to develop a draft rule and regulatory impact analysis that would establish monitoring requirements for every industrial and NPDES permit and require every industrial and significant industrial user to include PFAS source-reduction plans in their municipal pretreatment plans.

The Republican-majority commission has come under fire for what some state officials and environmental groups are calling stall tactics.

In a meeting earlier this month, some commissioners continued to refute those claims, saying that they were committed to addressing 1,4-dioxane discharges into drinking water sources in the state.

Commission members briefly discussed a petition to the EPA asking the agency to strip North Carolina’s authority to administer the NPDES permit program. North Carolina is one of 47 states authorized by the EPA to implement the permit program.

Cape Fear River Watch, Environmental Justice Community Action Network, Haw River Assembly, and MountainTrue filed the petition Aug. 28, arguing that the North Carolina General Assembly had blocked DEQ from “effectively implementing” its NPDES permit program and protecting North Carolinians from water pollution.

The General Assembly has amended laws that dictate who appoints members of the Environmental Management Commission and Rules Review Commission, “such that these commissions have been effectively captured by a supermajority in the legislature that is hostile to environmentally protective regulation,” according to the petition.

Legislators have also enacted laws that give the Office of Administrative Hearings “final decision-making authority over NPDES permits, thereby stripping DEQ and the EMC of the roles assigned them,” the petition states.

The EPA “generally works” with a state and petitioner to resolve issues raised in a petition, according to the agency’s website.

Kelly Moser, a senior attorney with the Southern Environmental Law Center’s Chapel Hill office, confirmed late last week that the EPA is taking the petition under advisement. The EPA’s Atlanta region press office did not respond to a request for comment.

“We’ve had concerns about the legislature control over the EMC and we’re just seeing that playing out in the latest delays that the EMC has created in North Carolina’s attempts to protect people from harmful industrial chemicals,” she said in a telephone interview. “The people of North Carolina deserve to have access to clean water and the actions by the state legislature, the EMC and now ALJ van der Vaart are standing in the way of North Carolinians having access to clean water. We are confident that EPA will take our petition seriously and that the state will hopefully be forced to come into compliance.”

Updated 10:30 a.m. Wednesday: The Senate Agriculture, Energy and Environment Committee adopted the amendment during its meeting Wednesday morning in Raleigh.

Original post 11:45 a.m. Tuesday:

Sen. Bobby Hanig, R-Currituck, has proposed language that would direct the Coastal Resources Commission to implement its longstanding rule protecting Jockey’s Ridge until the commission can adopt a permanent rule that again defines the massive dune as an area of environmental concern.

Hanig said Tuesday during the Senate Agriculture, Energy and Environment Committee meeting in the Legislative Building in Raleigh that he would formally introduce the proposed committee substitute for House Bill 426 for committee consideration Wednesday.

The proposed language is in response to an ongoing dispute between the Coastal Resources Commission and the state Rules Review Commission, which last year rejected 30 longtime coastal rules, including protections for Jockey’s Ridge in place since 1977.

The CRC is responsible for adopting coastal management rules. The RRC is charged with reviewing and approving rules adopted by state agencies.

“Currently there’s a lawsuit between the CRC and RRC regarding several emergency declarations that were put in place and Jockey’s Ridge is caught in the middle of it,” Hanig said Tuesday during the committee discussion. “Currently Jockey’s Ridge is not protected from any type of construction or anything like that. So, we got to make sure we take care of Jockey’s Ridge.”

Hanig’s measure would direct the Coastal Resources Commission to implement its previously adopted rule establishing minimum use standards for development in the Jockey’s Ridge area environmental concern until the CRC adopts permanent rules.

The language would also require Department of Administration to hold a public hearing before granting an easement on state property for disposal of spoil materials dredged from navigable waters or dumping rights of spoil materials in the county where the proposed easement is located and consult with the Joint Legislative Commission on Governmental Operations, effective Aug. 1.

It would also “clarify” language regarding surfaces excluded from consideration as “built-upon area” for purposes of state or local stormwater programs. It would also add artificial turf installed over pervious surface to the list of surfaces that are not considered built-upon area.

MANTEO — In an effort to address objections from the commission that last year nulled 30 state rules, including the environmental designation for Jockey’s Ridge, and to maintain temporary rule protections, the North Carolina Coastal Resources Commission unanimously voted Thursday to send an amended rule and findings from the state geologist back to the state Rules Review Commission.

“We’re trying, but there’s no guarantee that the Rules Review (Commission) will in any way change their mind,” CRC Chair Renee Cahoon said after the vote during the second day of the two-day meeting at the Dare County Administration Building. “We hope that the supplemental findings and the fact that we’re fighting so hard will make a difference.”

The findings, she said, are based on a letter received this week from State Geologist Kenneth Taylor affirming that Jockey’s Ridge meets the qualifications that define an Area of Environmental Concern, including being a unique geologic formation.

The CRC is seeking to restore the AEC designation to Jockey’s Ridge State Park in a permanent rule to replace the one tossed by the 10-member Rules Review Commission, which is appointed by the leaders of each chamber of the North Carolina General Assembly.

Jockey’s Ridge in Dare County is the tallest living sand dune on the East Coast, according to the nonprofit Friends of Jockey’s Ridge organization that supports the state park created in 1975 at the site once targeted by developers.

The Division of Coastal Management staff is proposing an amended rule to redesignate Jockey’s Ridge as an Area of Environmental Concern, along with a set of use standards to protect the AEC from incompatible development and loss of sand.

The proposed amended rule would include protective-use standards for the AEC to prevent incompatible development and sand loss, according to division staff. At the same time, the CRC intends the revised rule to alleviate the Rules Review Commission’s stated objections by limiting rule content to the Jockey’s Ridge AEC designation and its particular use standards.

The Rules Review Commission had objected to 30 existing CRC rules. Last year, new legislation prevented the CRC from responding to the objections and the state codifier removed them from the N.C. Administrative Code. The CRC then reinstated 16 of those rules through emergency rulemaking and proposed temporary rules, to which the rules commission objected.

“This is unchartered territory for us,” Cahoon explained. “In the past, any rule that came up for periodic review, we worked with the Rules Review Commission.”

The Coastal Resources Commission was caught off guard during last year’s state legislative session, she said, when the General Assembly gave the rules codifier the ability to eliminate existing rules. Objections were also issued against numerous other state agencies’ rules.

“No more notification — just absolutely unfettered power to drop the rules,” Cahoon said of the change.

Area residents and Jockey’s Ridge supporters have come out in force in favor of the AEC redesignation, which in part ensures that sand will not be removed from the dune and protects it from unsuitable development.

“You can’t get this back,” resident Taylor Conyers told Coastal Resource Commission members during the public comment portion of the meeting Thursday, adding that she was speaking on behalf of other younger residents. “You can’t get Jockey’s Ridge back once it’s encroached upon. Like, it’s gone.”

As Daniel Govoni, policy analyst and federal consistency coordinator with the Division of Coastal Management, detailed in his presentation Thursday, the proposed rule is divided into three areas: description, boundary and use standards.  

“If we approach this rule as a brand-new rule and, instead of going into all the other processes, it would have three sections,” Govoni said.

Commission member Jordan Hennessy had previously requested staff to prepare proposed rule language for the panel to review.

Hennessy, who has attracted attention for, among other actions, attempting to oust Cahoon as chair at the start of his first commission meeting, spoke out in support of the AEC for Jockey’s Ridge. 

“It’s a gem, a treasure to the state,” said Hennessy.

The commission, during the meeting, also approved starting the permanent rulemaking process, which takes about a year, to replace six other rules that were deleted over Rules Review Commission objections.

The process would require additional public comment periods and public hearings.

Reprinted from Outer Banks Voice

As the Coastal Resources Commission and North Carolina Rules Review Commission head to court over regulatory language for coastal development and use, Jockey’s Ridge State Park is in danger of losing its Area of Environmental Concern protections.

The Area of Environmental Concern, or AEC, protections, among other things, prohibit removing sand that has migrated off the dune and allows the state to periodically move that sand back within park boundaries. The AEC also has provisions prohibiting some types of development in close proximity to the park.

There is increasing frustration with the rulings of the Rules Review Commission about what would constitute acceptable language for AEC protection.

Coastal Resources Commission is scheduled to hear an update Thursday during its meeting in Manteo on the Rules Revision Commission’s April 8 objection and hold a discussion in closed session.

Related: CRC to consider variances, hear rulemaking update

The Rules Review Commission determines the language that is used by regulatory agencies. It has ruled that some 30 regulations that govern how the Coastal Area Management Act, or CAMA, operates are vague, imprecise or inconsistent with its mandate. Those rules have been removed, including the AEC protections for Jockey’s Ridge.

The Coastal Resources Commission attempted to create temporary rules for the Jockey’s Ridge AEC in March, but the Rules Review Commission rejected those rules earlier this month, using the word “unique” 16 times in the five paragraphs written rejecting the AEC rule.

Although there were other descriptions and language the Rules Review Commission rejected, the word unique was associated with almost every objection.

Rules Review Commission counsel Brian Liebman wrote in part that the Coastal Resources Commission “does not define what degree of exclusivity transforms an ordinary geologic formation into a ‘unique’ geologic formation and does not define the coastal area in which these formations must be found.”

The North Carolina Division of Parks and Recreation describes Jockey’s Ridge as “an excellent example of a medano, a large, isolated hill of sand, asymmetrical in profile and lacking vegetation.”

Nags Head Mayor Ben Cahoon pointed out that there is nothing else like Jockey’s Ridge on the East Coast of the United States, and by that definition, it is unique.

“Jockey’s Ridge, as far as I know on the East Coast of the United States is unique…How many words do you want to use? There’s not another one like it. And it is in fact unique,” he said.

Speaking for herself, former Nags Head Commissioner and Coastal Resources Commission Chair Renee Cahoon, also voiced frustration.

“It’s just mind-boggling that all of a sudden, there’s verbiage use that’s not acceptable to a new Rules Review Commission that has been accepted for every 10 years by previous Rules Review Commissions and that were accepted by the initial Rules Review Commission when we made the rules,” she said.

The Coastal Resources and Rules Review commissions are currently in court over the wording that can be used in rulemaking. The Coastal Resources Commission is responsible for writing the language that is used in its regulations. The Rules Review Commission determines if the language is sufficiently clear and not open to interpretation.

“Because this matter is pending litigation, we are unable to comment,” Nazneen Ahmed, Press Secretary for Attorney General Josh Stein, wrote in an email to the Outer Banks Voice.

An attempt by the Coastal Resources Commission to put into effect temporary rules consistent with what had been in use for some time, was disallowed by the Rules Review Commission.

For Mayor Ben Cahoon, it leaves the town of Nags Head in a difficult position. The town, he said, will do all it can to support and protect Jockey’s Ridge, but there is a real limit to what a municipality can do.

“We’ll do what little bit it can do by ordinance…in the interim, until it’s all resolved,” he said. “But I see at some point, as frustrating as it is, we have to realize it’s out of our hands until either these two agencies come to agreement or the court or the legislature weighs in somehow.”

This story is provided courtesy of the Outer Banks Voice, a digital newspaper covering the Outer Banks. Coastal Review is partnering with the Voice to provide readers with more environmental and lifestyle stories of interest about our coast.

More than a dozen rules state coastal management officials say are crucial to day-to-day operations will remain on the books for now.

The Coastal Resources Commission on Wednesday unanimously adopted the 16 rules as “temporary,” a move that will keep the rules in the state Administrative Code for one year or until they are reinstated as permanent rules.

The lead-up to Wednesday’s vote, which was cast during a special called meeting, had Mary Lucasse, special deputy attorney general and counsel for the Coastal Resources Commission, at times seemingly defend a case already in the courts.

Commissioner Jordan Hennessy, who was newly appointed to the commission last year, peppered Lucasse with questions as he referenced an ongoing lawsuit the coastal commission and North Carolina Department of Environmental Quality filed against the Rules Review Commission and state Codifier of Rules Ashley Berger Snyder.

“Are we following all the rules and laws of the state when it comes to the temporary rules and permanent rulemaking process because the statement says that the CRC fails to show that the notice and hearing requirements of temporary and permanent rulemaking are contrary to public interest,” Hennessy said.

He was referring to comments included in a letter Snyder sent Lucasse a couple of days after the coastal commission adopted the rules as “emergency” late last year as a means to quickly get them back into the state code.

“In my opinion the Coastal Resources Commission is doing that,” Lucasse responded. “And, as you know, there’s a dispute between two equally positioned agencies about how to interpret laws. That’s what codifier has indicated. I don’t agree with her. Other people don’t agree with her. It doesn’t really matter because between the two of these equal agencies, if we think we’re following the law and we move forward doing that, then it will have to be determined by a court here in North Carolina because that’s how disputes are decided.”

When Hennessy read from the lawsuit later in the meeting, Lucasse said he “appeared to be taking that at face value” and that that was not appropriate.

“I’m asking questions to try to get better educated on this and I’d appreciate if we can just stick to that and answering the questions,” Hennessy responded.

Snyder, who is the daughter of North Carolina Senate President Pro Tem Phil Berger, R-Rockingham and Guilford, removed 30 of the coastal commission’s longstanding rules last October after those rules were objected to by the rules commission.

State Division of Coastal Management officials have been working with the rules commission to tweak wording in the 14 rules that have not been temporarily adopted.

The now-adopted temporary rules enforce certain 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.

Some members of the coastal commission questioned why the state’s coastal management division needed the rule that designates Jockey’s Ridge as an area of environmental concern, or AEC, since the landmark is also offered federal protections. AECs are areas of natural importance that the division designates to protect from uncontrolled development.

“If it’s determined to be a natural landmark by the U.S. Department of Interior why will we need a rule to protect it?” Commission Robbie Yates asked.

The rules allow the coastal commission to have jurisdiction and set rules that are consistent within the coastal management’s Coastal Area Management Act, or CAMA, program, Lucasse said.

And the rule in question dictates that sand blown from Jockey’s Ridge onto neighboring properties must be returned to the park, another commissioner noted.

“Given the winds that we have down here, Jockey’s Ridge is protected so that when the sand blows away it gets put back into the resource, not taken away and disposed of, for example, on the beach or somewhere else,” Commission Chair Renee Cahoon said.

An overwhelming majority of nearly 230 comments submitted to the division over the course of more than a month supported the temporary rules. Environmental organizations, the Southern Environmental Law Center and a handful of beach towns from North Topsail Beach to Duck supported the rules. More than 600 signatures were included in a petition submitted by the N.C. Conservation Network.

Yates further pressed Lucasse, asking how one might argue that the rule pertaining to Jockey’s Ridge is a matter of public safety.

“The legislature has said that it’s very important for them to balance development and to protect the national natural resources at the coast,” Lucasse said. “Your commission, you and the people that have sat in the chairs before you, have gone through a very thoughtful process of designating areas of environmental concern in order to protect the natural resources at the coast. I think that this is a situation in which your coastal program has been lessened and the welfare of the people who have depended, as the legislature has designated this commission to do to protect those natural resources, means that we’re in a situation where there’s a need for this temporary action in order to protect public health, safety and welfare.”

But Commissioner Steve King questioned whether having multiple layers of jurisdiction is beneficial for the public.

“To me that is de facto definition of bureaucracy and I’m not sure how that weighs in the public interest to have that kind of process,” King said.

He said he would be looking at the permanent rules, saying what will be, in his opinion, a “complete investigative audit of rulemaking process and permitting making process.”

Hennessy said he would support the temporary rules “for now,” but that he would like to see some changes made to the rules before they become permanent.

Cahoon said there will be ample time for commissioners and the public to comment further on the rules.

The public comment period on more than a dozen proposed temporary rules that guide state coastal matters has been extended through February.

Written comments on 16 rules the Coastal Resources Commission late last year reinstated as emergency rules will be accepted until 5 p.m. Feb. 22, which is also the date in which the commission is scheduled to hold its first meeting of the year.

“All comments received via email and mail will then be considered during review of the proposed rules,” North Carolina Division of Coastal Management Public Information Officer Christy Simmons stated in an email.

Related: Emergency coastal rules draw little notice during hearings

The commission voted at a specially called meeting in December to adopt the rules, which division officials say are critical to day-to-day operations, as “emergency” as a way to get them back into the administrative code.

Their vote overrode the decision of the state Codifier of Rules Ashley Berger Snyder to remove 30 of the coastal commission’s longstanding rules after those rules were objected to by the Rules Review Commission in October.

Last month, Division of Coastal Management staff hosted three public hearings to receive comment on the proposed temporary rules. Fewer than 20 people turned out for the hearings, which were held in Dare, Carteret and Onslow counties.

Written comments may be submitted by email to Angela.Willis@deq.nc.gov or by post to: Tancred Miller, Director, Division of Coastal Management, 400 Commerce Ave., Morehead City, NC  28557. List “Temporary Rules” in the subject line.

The Coastal Resources Commission is set to meet Feb. 21-22 at Aloft Wilmington at Coastline Center, 501 Nutt St., Wilmington. An agenda for that meeting was not available when this report was published.

Update Jan. 26: The Coastal Resources Commission has extended the public comment period on proposed temporary rules to 5 p.m. Feb. 22, the Division of Coastal Management announced Thursday. The previous deadline was Feb. 1.

Written comments can be sent by email with “Temporary Rules” in the subject line to Angela.Willis@deq.nc.gov or by mail Tancred Miller, Director, Division of Coastal Management, 400 Commerce Ave., Morehead City, NC 28557.

Original post published Jan. 12:

SNEADS FERRY – Rules the state’s lead environmental agency says are critical to its day-to-day operations drew little to no public comment during a series of hearings hosted in three coastal counties this week.

Fewer than 20 people turned out for public hearings the North Carolina Division of Coastal Management held Tuesday and Wednesday in Dare, Carteret and Onslow counties.

Even fewer spoke on the record to share their thoughts about 16 rules the Coastal Resources Commission agreed last month were too important to be pulled from the state Administrative Code. The commission was created to adopt rules for the state’s Coastal Area Management Act, or CAMA, and the Dredge and Fill Act, and establishes policies for the North Carolina Coastal Management Program.

The commission voted at a specially called meeting in mid-December to classify the rules as “emergency” and adopted them as a way to fast-track getting them back into the Administrative Code.

The commission’s vote overrode the decision of state Codifier of Rules Ashley Berger Snyder to remove 30 of the coastal commission’s longstanding rules after those rules were objected to by the Rules Review Commission last October.

Snyder, who was appointed in 2021, returned a telephone call to Coastal Review Thursday but declined to answer questions.

“We do not comment on any pending litigation,” Snyder said, referring to an ongoing lawsuit the coastal commission and North Carolina Department of Environmental Quality filed in November against her and the Rules Review Commission.

Snyder is the daughter of North Carolina Senate President Pro Tem Phil Berger, R-Rockingham and Guilford.

The Division of Coastal Management is accepting written comments on the 16 emergency rules through Feb. 1.

All comments are to be shared with the Coastal Resources Commission during its first meeting of the year, Feb. 22, in Wilmington. The commission is expected to decide whether to adopt the 16 rules as temporary in order to keep them in the Administrative Code where the rules would remain through to about April.

If adopted, the temporary rules would then be kicked back to the Rules Review Commission for reconsideration.

Division of Coastal Management Deputy Director Mike Lopazanski said Wednesday during the last of the three public hearings the division held this week that staff had been working with the rules commission to tweak wording in the 14 rules that were not adopted as emergency rules.

Those rules are important, he said, but the 16 emergency rules “were the ones we thought were critical.”

Among those rules is one that designates Jockey’s Ridge State Park as an area of environmental concern, or AEC, and dictates that sand blown from Jockey’s Ridge onto neighboring properties must be returned to the park. AECs are areas of natural importance that the division designates to protect from uncontrolled development.

Nags Head Mayor Ben Cahoon, one of the few people who commented during the series of hearings, emphasized the importance of the rule to preserving the park.

“Coastal North Carolina has largely avoided corresponding coastal environment-changing disasters due to CAMA and its establishment and regulation of AECs,” he read from a prepared statement at the hearing held in Dare County on Tuesday. “The establishment of an AEC requires a closer examination of proposed activities and interventions, and gives everyone time to fully consider the consequences of particular actions.”

He noted that Jockey’s Ridge is the only state park that lies fully within a town’s boundaries.

“It is very special to us. Please help us protect it,” he said.

Until recently, 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, then the objection would be merely noted in the rule and that rule would remain in the Administrative Code.

But the state budget adopted Oct. 3 of last year includes language that gives the rules commission authority to send rules it objects to back to agencies. The budget also appears to give the state codifier of rules, in this case, Snyder, new authority. It remains unclear, however, whether that new authority includes stripping longstanding rules from the books.

Two days after the budget went into effect, the Rules Review Commission voted in a special called meeting to return the 30 of 132 rules the Coastal Resources Commission submitted for review.

The coastal commission and Department of Environmental Quality sued, asking a Wake County Superior Court judge to resolve the deadlock over legal interpretations between the two commissions and restore the rules.

According to the complaint, on Oct. 26, 2023, Snyder explained via email to DEQ’s rulemaking coordinator that, “because readoption of rules in the periodic review process requires that all rules be readopted as if they are new rules, the RRC had to approve preexisting rules for those rules’ ‘entry’ into the Code. As described further in the attached email correspondence, the Codifier asserted that the thirty rules at issue were removed from the Code because the rules had not been approved by the RRC and were subsequently returned to the agency.”

Note: Coastal Review will not publish Monday in observance of the Dr. Martin Luther King Jr. holiday.

When the North Carolina Environmental Management Commission meets this month, members are to hear recommendations concerning a new law to amend the state’s wetland rules.

The committees will meet from 9 a.m. to 4:30 p.m. Wednesday, Jan. 10. The full commission meeting is to start at 9 a.m. Thursday, Jan. 11. The public may attend the meeting in the Ground Floor Hearing Room of the Archdale Building in Raleigh in person or join the meeting by computer or phone.

In the 2023 North Carolina Farm Act, the commission was directed to amend the state’s wetland rules to be consistent with the federal “waters of the United States” or WOTUS, revised in 2023 because of the U.S. Supreme Court’s decision that isolated wetlands are not protected under the Clean Water Act.

The agenda also includes a discussion on their case against the Rules Review Commission’s for “unlawful objection to EMC’s proposed rule amendments codifying its pre-existing narrative standards for the carcinogenic toxin 1,4-Dioxane,” and an update on the revision to a discharge permit from seafood packing and rinsing, aquatic animal operations, and similarly designated wastewaters for aquaculture.

Meeting information, including draft agendas and additional materials can be found on the commission website.

Several North Carolina environmental groups are backing Gov. Roy Cooper’s lawsuit challenging the constitutionality of the legislature-appointed commission tasked with reviewing and approving rules adopted by state agencies.

The Southern Environmental Law Center recently filed a friend-of-the-court brief in Wake County Superior Court on behalf of the groups supporting the governor’s challenge to the North Carolina Rules Review Commission.

The governor’s office filed a lawsuit in the same court two years ago, arguing that the commission, which was created by and whose members are selected by the General Assembly, violates the state constitution’s Separation of Powers clause.

That clause mandates that the legislative, executive and supreme judicial powers of the state government “shall be forever separate and distinct from each other.”

The environmental groups supporting the governor’s challenge include Cape Fear River Watch, Carolina Wetlands Association, CleanAIRE NC, Democracy Green, Haw River Assembly, MountainTrue, North Carolina Black Alliance, Sound Rivers, West End Revitalization Association and the North Carolina Coastal Federation, which publishes Coastal Review.

“The groups we represent in the amicus wanted to join to show how this matters in real life and demonstrate that this isn’t just a meaningless power struggle between the governor and the legislature. This is about things that affect real people,” said Kym Meyer, a senior attorney with Southern Environmental Law Center.

The case is pending before a three-judge panel of state Superior Court judges and a hearing has been set for Nov. 9.

Challenging absolute power

Whether the rule is one that a state agency has created about wetlands protections or cadmium exposure in the workplace, the Rules Review Commission determines which rules do and do not make it on the books.

“It’s not about something about a license plate,” Meyer said. “It’s about E. coli in your water or which wells we’re going to protect or climate change issues and so the stakes are really high and dramatically affect the interests of all the client groups who signed on who are working really hard to protect resources, but can only do so if government agencies are going to be able to do their job and enforce the law.”

In the decade before the General Assembly created the Rules Review Commission in 1986, legislators had formed the Administrative Rules Review Commission, a panel of nine legislators who could object to, but not veto, proposed rules.

Related: Rules Review Commission meets Sept. 15

The Rules Review Commission, a 10-member body for which the legislature’s appointees serve two years, remained an advisory board until the mid-1990s when a series of amendments were made to the North Carolina Administrative Procedure Act.

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

The structure of the Rules Review Commission has, for years, been subject to lengthy legal debates and its decisions have been challenged over the years.

In 2004, the Environmental Management Commission sued the Rules Review Commission for declining proposed stormwater rules opposed by real estate developers and homebuilders. A few years later, the General Assembly approved a compromise that included scaled-back requirements for protecting water quality.

In 2014, the North Carolina State Board of Education filed a lawsuit against the commission, arguing the board of education was not constitutionally bound to submit its policies to the Rules Review Commission.

Three years later, an appellate court overturned a lower court’s ruling in favor of the board of education.

Two of the three appellate court judges who reviewed the case determined the Rules Review Commission is authorized to review and approve the board’s policies.

The dissenting judge argued that the state constitution gives the state board of education, not the Rules Review Commission, the power to administer and supervise public education.

A roadblock in the process

The environmental groups, Meyer said, are starting to feel like the commission is putting a roadblock in the rule implementation process by either slowing it down, stopping it, or potentially leading to agencies shying away from creating rules.

A 2004 paper published in the North Carolina Law Review points out that unlike administrative agencies, the commission is not restricted from being contacted by lobbyists.

Powerful lobbying groups get a voice in the legislative process, one that includes votes that go before both the House and Senate and, if passed, are signed off by the governor.

“That’s how we make law,” Meyer said. “But the problem here is this isn’t about making law. This isn’t the legislative process. This is about how, once laws are on the books, how they’re actually enforced in real time and that’s the governor’s job.”

Environmental justice groups that have aligned with the governor’s challenge to the Rules Review Commission depend on the governor to be able to do that job, Meyer said.

“They don’t have the same level of voice in the legislative process that powerful, rich interests might have so you can see the more political all of these processes become the more problematic it is for marginalized communities,” she said.

The Rules Review Commission is expected to consider proposed, temporary and permanent rules submitted by several state commissions and boards, such as the Environmental Management and Coastal Resources commissions when it meets in September.

The Rules Review Commission meets in-person Sept. 15 at 1711 New Hope Church Road in Raleigh, with limited capacity for the public. The public can view the meeting online using WebEx. Password is 1234. To listen by phone, call 1-415-655-0003 and use access code 2429 743 6092.

The Rules Review Commission is the executive agency created by the General Assembly in 1986 and charged with reviewing and approving rules adopted by state agencies.

The Environmental Management Commission is on the agenda because of an objection by the rules commission made during its May meeting. The Coastal Resources Commission asked for an extension to give staff more time to address technical changes in dozens of rules during the July meeting, which is to be followed-up during the September meeting.

The agenda, which includes links detailing the actions taken so far with the review of these rules and others, is available on the state Office of Administrative Hearings website.

The public may submit written comments or sign up to speak at a commission meeting, but the commission may only consider comments based upon statutory authority, clarity, necessity and compliance with the Administrative Procedure Act.

To submit comments on a permanent rule, email rrc.comments@oah.nc.gov and copy the agency’s rulemaking coordinator on the email by Sept. 8. 

To submit comments on a temporary rule, email rrc.comments@oah.nc.gov and copy the agency’s rulemaking coordinator on the email by Sept. 14.

To speak for or against a rule during an commission meeting, email the staff attorney handling the rule to request to speak and state whether you will speak in favor of or in opposition to the rule. 

Staff attorney assignments are noted next to rules on the agenda below and contact information can be found online. The deadline to sign up to speak regarding a permanent rule is Sept. 13, and the deadline to speak regarding a temporary rule is Sept. 15.