Slow Down: Merger Idea Needs More Study
By Kirk Ross and Frank Tursi
RALEIGH -- A report that was mandated by the N.C. General Assembly on merging the state’s Division of Marine Fisheries and Wildlife Resources Commission recommends that legislator take more time to study the idea, citing the complexity of the task, the agencies' different missions and a lack of public consensus.
Merging the fisheries and wildlife agencies and moving seafood inspections and oversight to the N.C. Department of Agriculture and Consumer Services was a hot topic in the legislature during this year’s session. It’s one of several agency reorganizations that the legislature is considering – ostensibly to save money -- before convening in January.
Legislators passed a bill last session that required the three agencies to study merging and report back by Oct. 1. The 28-page report noted that the fisheries and wildlife agencies serve users who often have conflicting interests.
Sen. Don East
“It was determined that while the mechanics of legislating reorganization could be fairly simple, the impacts of reorganization would be both complex and uncertain,” the report says. “In light of these factors, any reorganization should be studied in more detail with sufficient time to conduct alternatives analyses and incorporate extensive stakeholder input.”
The three public meetings that the agencies held to elicit comments and those submitted online or by email offered no real direction, the report notes. Of the 150 or so comments, about 30 percent favored merging fisheries and wildlife resources and 28 percent did not. The rest favored doing nothing or taking other steps, such as looking for more opportunities for partnerships among the agencies, merging all three agencies or studying the idea further.
The report contained no estimates as to how much the merger would cost or how much it might save, though Louis Daniel, the director of the fisheries division, doesn’t think there would be a great deal of savings.
“What really are the savings you would achieve?” he asked. “There is very little overlap between us and wildlife and very little overlap between us and Agriculture. We really couldn’t point to any position and say that these people have the same job.”
That doesn’t mean money couldn’t be saved by more interagency cooperation, Daniel said. The three agencies, the report says, will work together to seek greater efficiencies and collaboration in areas like habitat protection, fishery management and data collection, marine patrols and aquaculture and seafood marketing.
“I strongly believe that we have three very different missions,” Daniel said, “and we can best succeed in those missions by being separate agencies.”
Although the idea has met with opposition from the state’s commercial fishing industry, merging fisheries with wildlife resources has the strong backing of Sen. Don East, R-Alleghany, co-chair of Senate’s Agriculture, Environment and Natural Resources Committee and a key budget-writer. He wanted to push the move through this year as a cost-cutting measure, but settled for a study instead. An early version of the legislation mandating the study set July 1, 2013, as the target date for the potential merger.
Over the past two years legislators have not been shy about moving around departments and divisions within agencies, including the move of the N.C. Division of Forestry and its roughly 500 employees from the state Department of Environment and Natural Resources to the N.C. Department of Agriculture and Consumer Services, one of the largest personnel shifts in state history and part of a trend to pare the environmental department down to mostly a regulatory agency.
The study of merging fisheries and wildlife resources isn’t the only one that could create ripples along the coast. Legislators also mandated a look for potential savings by partnering with non-profits to run the state zoo and aquariums. The study, due in December, followed a move by legislators to rein in spending at the aquariums, including a provision preventing construction of any new aquarium facilities off-site from existing ones.
The studies are a reminder that behind the backdrop of this year’s election, policy making chugs along in Raleigh. While the part-time occupants of most of the legislative office are on the campaign trail, the Legislative Building is not altogether quiet. Other studies due by year’s end are looking at new approaches to energy, environmental regulation and wetland mitigation. The results will probably play out in next year’s session.
Here’s a rundown.
A new Wetlands and Stream Mitigation study commission, authorized by a bill passed in 2011, meets for the first time on Oct. 23. It is expected to focus on a review of state’s Ecosystem Enhancement Program, which came under fire after a series of articles in the Raleigh News & Observer in 2011 that highlighted cost overruns and the overall efficacy of the program.
Also on the new commission’s agenda is a look at possible state assumption of so-called 404 permits -- named for the provision in the federal Clean Water Act -- which regulates disposal of materials from dredging and fill operations.
Now, the Army Corps of Engineers grants 404 permits for environmentally sensitive areas known as Section 10 waters, which includes tidal areas and nearby wetlands. A U.S. House Transportation subcommittee began holding hearings in September on ways to encourage states to take over management of 404 permits, including expanding states’ authority to the Section 10 waters.
Also this month, the legislature’s Environmental Review Commission meets for the first time since April with a look at the state’s water supply plan, agricultural water use, plastics recycling and a review of DENR’s sediment program on the agenda.
Devils in the Details
While new laws and legislative policy shifts get the headlines, they don’t change matters overnight. Exactly how a change is to be implemented requires a lengthy process, including public review, revisions and further review.
In the case of regulatory reform, which proved a top priority for the 2011-2012 session right out of the gate, changing the way the state makes rules and regulations and grants permits to be more “business friendly” has been a difficult goal in part because of the relationship between state and federal regulators.
Early on in the legislature’s push for reform, a proposed change in how the state handles permit challenges in the omnibus Regulatory Reform Act of 2011 drew concern from the U.S. Environmental Protection Agency, which viewed the new procedure as a substantial alteration to the way the state would enforce the federal Clean Water and Clean Air acts. The change moved the final call in legal challenges of environmental permits from the Environmental Management Commission to the Office of Administrative Hearings.
When she vetoed the bill, Gov. Beverly Perdue cited similar concerns as the EPA and noted previous declarations by the state Attorney General that having an administrative law judge decide matters delegated to the executive branch is unconstitutional.
Perdue’s veto was narrowly overridden, but EPA’s concern set off a back and forth that led the legislature to postpone the scheduled Jan. 1, 2012 implementation of the new appeals procedure until Oct. 1. In mid-August EPA agreed to the new procedure and in September officials with the state Department of Natural Resources and Environment officials announced that permit challenges filed after Oct. 1 would go through the new procedure.
Derb Carter, director of the Carolinas office of the Southern Environmental Law Center, said the issue might not be as settled as it sounds. The EPA’s letter, Carter said, spells out that since under the new procedure law judges send permits back to DENR to be revised EPA still considers DENR as having final say in how the permits are enforced.
The proposed U.S. 70 Bypass around Havelock would effect portions of the Croatan National Forest.
That puts the EPA at odds with the legislature, Carter said. “The legislature appeared to intend for OAH (Office of Administrative Hearings) to decide what is in a permit,” he said. “Now it may or may not be DENR depending on how you interpret the law.”
Carter said SELC sees some opportunity in the new approaches by the legislature, especially in transportation policy, which has had a focus on building four-lane highways since legislation passed in the mid-1980s calling for a massive road-building program. The goal was to put 90 percent of North Carolina’s residents within 10 miles of a four-lane highway. It was a program that worked to get new critical roads built, but was also loaded with unnecessary projects, Carter said.
Now the legislature is taking a hard look at some of the projects remaining on the state’s to-do list. Carter said SELC wants transportation planners to take a second look at some of the more environmentally damaging projects including a four-lane bypass around Havelock through part of the Croatan National Forest and the proposed expansion of U.S. 64 through the Alligator River National Wildlife Refuge.
“The program started out being about good roads, but to get it passed everyone wanted their piece of the pie,” Carter said. “And every Senate district and every House district got its piece of the pie whether it makes sense or not.”