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Neuse Buffer Rule

The Issue
A major algal bloom and subsequent hypoxic conditions in the summer of 1995 near New Bern, North Carolina led to a major fish kill in the lower Neuse River. This incident, together with an unrelated pollution event in a nearby river basin that same summer brought about a major public outcry to protect the state’s waterways.  

In 1996, the North Carolina General Assembly directed the NC Environmental Management Commission (EMC) to adopt rules to reduce nitrogen loading by 30 percent in the Neuse River and two other major river systems.  The Neuse was the first of the three river basins for regulatory action.  The EMC adopted the Neuse Buffer Rule (NBR) as a temporary rule in June 1997 after extensive public comment and review.  The NBR established a 50-foot riparian buffer along all intermittent and perennial streams, lakes, ponds and estuaries in the Neuse Basin with runoff directed through the buffer as diffuse flow to remove nutrients.  However, by mid-1998, water quality regulators as well as the regulated community voiced strong dissatisfaction with the rule its implementation.  That summer, meetings were held between members of the General Assembly, the Department of Environmental and Natural Resources, regulated communities, and conservation advocates led to the passage of House Bill 1402.  The legislation established how the rule was to be implemented on a temporary basis, created a stakeholder committee, created a system for alternatives to maintaining the buffer and directed the EMC to allow delegation of the program to interested local governments.  The stakeholder committee was tasked with evaluating the rules and making recommendations on improvements to the EMC and the Environmental Review Committee of the General Assembly.


Stakeholders

HB 1402 designated a 23-member committee consisting of representatives of environmental organizations, local governments, construction and building industries, manufacturing, agriculture, and federal and state regulatory agencies. 

Convenor
- NC General Assembly; NC Division of Water Quality

Committee Chair
- UNC/NCSU Water Resources Research Institute

Environmental Nonprofits
- Conservation Council of North Carolina
- NC Environmental Defense Fund
- Neuse River Foundation
- NC Chapter of the Sierra Club
- NC Wildlife Federation

State/Federal Regulatory Agencies
- Environmental Management Commission
- US Army Corps of Engineers, Wilmington District

Local Government/Basin Associations
- NC Association of Soil and Water Conservation Districts
- NC Association of County Commissioners
- NC League of Municipalities
- Upper Neuse River Basin Association
- Lower Neuse River Basin Association
- NC Association of Environmental Professionals
- NC Chapter of the American Planning Association

Industry & Agriculture
- NC Aggregates Association
- NC Citizens for Business and Industry
- NC Farm Bureau Federation
- NC Forestry Association
- NC Home Builders’ Association
- Commercial Land Developer

Facilitators
Nan Freeland, Natural Resources Leadership Institute, NCSU
Steve Smutko, Natural Resources Leadership Institute, NCSU


Methods and Process
The Stakeholder Advisory Committee (SAC) met 14 times between October 21, 1998 and February 26, 1999. An initial two-day meeting included visiting field sites that presented typical NBR implementation issues. One meeting was in New Bern, and the remainder held in Raleigh. Most meetings lasted approximately 10 a.m. – 4 p.m.

The SAC heard from technical experts on a numerous topics related to water quality protection and riparian buffers.  The SAC established a Stream Technical Advisory Committee for issues of mapping and defining intermittent and perennial streams. A Forestry Technical Advisory Committee was convened to discuss buffer protection requirements for forestry.

SAC agreed to operate by consensus where possible, and where consensus was not possible, the differing positions of SAC members were to be reported to the Environmental Management Commission for use in its decision-making. 


Results and Outcomes
The final report of the SAC’s efforts included a proposed revised Neuse River Buffer Rule, new mitigation and delegation rules and proposed legislative changes. (Click here for a copy of the final report).

Major Points of Consensus:
To use USGS topographic and county soil survey maps to define streams where buffers are to be applied (with field determinations to settle disputes over a stream’s existence);

Definition of a process to allow for compensatory mitigation for impacts to the buffer;

Voluntary delegation of program responsibilities to qualified local governments with Division of Water Quality oversight;

A list of 36 specific activities placed into four categories: exempt from buffer standards, allowable, allowable with mitigation and prohibited;

An increase in the amount of logging allowed in a thirty-foot zone closest to the stream or river based on a compilation of parts of several draft rules proposed by the Forestry TAC with the addition of return times for harvesting;

Legislative suggestions including:
- Establishing a training program with fees
- Allowing compensatory mitigation on perennial as well as intermittent streams;
- Allowing alternative mitigation strategies that allow for alternative nutrient reduction strategies;
- Funding a stream mapping process; and
- Revising the delegation process.

Major Points Without Consensus
The Width and Vegetation Requirements for the Buffer.
The majority of the SAC agreed that the buffer should be 50 feet wide and apply to all vegetation with exemptions for existing uses.  However, some members believed that the extension of the rule to all vegetation was too expansive.  Additionally, concern was raised that protecting all vegetation would limit opportunities for mitigation.

The Price for Mitigation. The majority of SAC agreed that the price computed by DWQ was appropriate and necessary complete mitigation activities, but some members believed that this price was too high.

Exemptions for Small Impacts. Some SAC members believed that an exemption for small impacts would increase the efficiency of the buffer rule by allowing DWQ and the delegated local authorities to focus on more significant buffer impacts.  The majority of the SAC concluded that the revised draft rule had enough provisions for small impacts.

Forest Harvesting In the Ten Feet Directly Adjacent to Surface Waters. The SAC majority agreed to allow removal of high-value trees within the first ten feet directly adjacent to surface waters.  Some SAC members believed tree harvesting should be prohibited in the ten-foot zone. 

Forest Harvesting Where the Majority of the Trees are 10-inches DBH or Greater. The majority agreed that, for a mature stand of trees, the harvesting requirements should allow removing 50% of the trees that are 10-inches DBH (Diameter at Breatst Height) or greater. Some stakeholders believed that the harvesting of trees down to 5-inches DBH should be permissible.

Inclusion of Land Donation as an Option for Mitigation. The SAC majority agreed that land donation should be allowed as an option for meeting mitigation requirements as specified in House Bill 1402, but other stakeholders disagreed. 


Process Challenges and Actions
Challenge:  The scientific literature was inconclusive on the efficacy of various buffer characteristics, the most important being buffer width.  Negotiators leveraged this uncertainty to harden their favored position on buffer width.
Action: The facilitators tabled discussion on buffer width until late in the process.  This enabled the negotiators to develop a repertoire of buffer attributes such as allowable uses, management, mitigation, etc., from which to build integrative solutions.

Challenge: The stakeholder group’s composition was defined by the legislature, without the benefit of a situation assessment by an objective third party.  The result was an overly large committee with many members having little substantive interest in most issues on the table.
Action: Subcommittees were formed to focus on specific issues and report back to the larger committee with recommendations.  In addition, some committee members assumed secondary stakeholder status, and delegated decision making to trusted associates from other organizations, thus reducing the size of the committee to a more manageable number.


Lessons Learned
Legislation establishing and directing a stakeholder advisory committee provides strong impetus for a group to persevere through a difficult process and generate results.  However, identifying participants by name or organization, as was done in this case, can unnecessarily constrain the group’s focus and vision, potentially leading to second-best outcomes merely because key interests are not at the table. While the intent of assuring appropriate representation from diverse interests is worthy, specific representation is best determined through a conflict assessment. Enabling legislation can identify the kinds of interests that should be included in the committee.

Complex regulatory stakeholder efforts typically conclude with less than 100% consensus. This effort exemplified the challenge of working with a large group on a range of specific, technical issues where significant data was incomplete, absent or strongly contested. The final report showing points of consensus and dissention, and having the committee agree to the report as a whole, is a good approach.

Negotiating the characteristics of riparian buffers can be especially problematic when parties anchor on specific buffer dimensions.  Negotiators tend to focus on the dimension of the buffer rather than the functions, benefits, and costs that each additional dimensional represents.  It is particularly useful for negotiators to be able to identify the minimum increment that brings about significant changes in the buffer’s functions, benefits, and costs, to describe those changes from one increment to the next, and to negotiate on those increments rather than an arbitrary increment such as one linear foot.

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