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Participants dispute DENR’s version of stream protection rules

Top officials in the state’s environmental agency have defended the rewrite of stream protection rules by a small group of industry insiders and regulators by saying the original approved rules weren’t written by anyone with hands-on experience.

But the original group of stakeholders who were part of the process that resulted in the new rules for stream buffer mitigation was comprised of half a dozen mitigation banking firms, consultants and other private industry specialists.

All of them attended at least one of four formal meetings in 2009 and 2010, attendance records, emails and interviews show. Representatives of the companies were copied on emails sent by the state Department of Environment and Natural Resources apprising them of upcoming meetings.

John Dorney, the now-retired DENR water quality division supervisor who organized the meetings, confirmed their attendance, as did another participant, Geoff Gisler, an attorney with the Southern Environmental Law Center.

“That’s why I was, frankly, shocked to see the Gillespie/Ellison letter,” Gisler said of a letter to the editor published in Thursday’s News & Observer that was written by DENR Assistant Secretary Mitch Gillespie and Ecosystem Enhancement Program Director Michael Ellison. “I sat in a room with mitigation bankers and EEP and DENR staff, as well as consultants, talking about how the rule would play out.”

“The group that wrote the original rule update did not include anyone who actually implements mitigation projects,” Gillespie and Ellison wrote in their letter to The N&O.

On Monday, the DENR officials said they were referring to the people who literally wrote the rules, not those who just showed up at meetings. Ellison, in an earlier interview, didn’t make that distinction.

“The rule developed over a few years did have big stakeholder groups with environmental advocates and a whole bunch of others,” Ellison said in the earlier interview. “It didn’t include practitioners, people who put mitigation in the ground.”

In fact, it included groups such as Restoration Systems, the mitigation banking firm where DENR Secretary John Skvarla once worked. George Howard, co-founder of the company, confirmed Monday he attended the first meeting and said he isn’t sure if anyone else went to subsequent meetings.

Norton Webster with Environmental Banc & Exchange, another mitigation banker, also confirmed his company was represented. Records show that firm attended twice.

Pig and a process

Landowners, developers and road planners can offset damage to streams and wetlands from their projects by restoring or enhancing other areas. Mitigation banking firms deal in credits earned for those improvements, and the state Ecosystem Enhancement Program supervises that process.

Over the years, the rules governing mitigation had grown haphazardly, and in 2009, regulators set out to update them.

Dorney, the former DENR supervisor, said the letter co-authored by Gillespie and Ellison diminishes all the work that the original stakeholder group put into writing the rules, which were then rewritten in private meetings over five months this winter.

On Monday, Drew Elliot, communications director for the environmental agency, said Gillespie and Ellison “meant those who actually wrote the rule update – not just folks who were technically in the room but whose professional experience and practical concerns were ultimately discounted.

“Saying that there were mitigation implementers involved in the process of making the initial rules is like saying that the pig was involved in the process of making barbecue,” Elliot wrote in an emailed response to The N&O.

He said the initial process was flawed, and DENR corrected it through a process available under the law, which resulted in better water quality for the state.

DENR and many of the others involved say the rewrite was mostly technical and didn’t represent a major reworking of the rules that had already been approved. Some environmental groups disagree.

Dorney said he thinks some of the changes made this winter, in fact, improved the rules, while others say it’s too soon to tell. “The rules will sort themselves out,” he said. “That’s what rules do. We had a good stakeholder group.”

Unusual turn

In this case, the process began typically enough, but then it took an unusual turn.

Gathering input from stakeholders from 2009 to 2012, DENR submitted proposed rules to the Environmental Management Commission, which approved them in May. The Rules Review Commission approved them in July, setting the stage for them to go into effect unless at least 10 objections were filed, forcing the General Assembly to take up the issue.

Ellison and two other DENR employees were among those who filed formal objections to the rules, stopping them from taking effect, and convening a group of seven people to refine them. The group was comprised of four industry representatives, DENR and the state Department of Transportation.

Late last month, the legislature directed the Environmental Management Commission to throw out the rules it had approved and adopt the rewrite.

Most of the formal objections were written over a three-day span by those involved in the mitigation business. Some of the letters brought up specific technical concerns, while others were simply political, arguing that environmental regulations were stifling the economy.

When two letter-writers withdrew their objections – endangering the 10-letter minimum requirement that would put the brakes on the rules – two more people came forward with their own letters: a private mitigation consultant and a man who currently works at DENR.

Ellison also encouraged the state Department of Transportation to write a protest letter, according to Greg Thorpe, a retired DOT official who was involved in the original rule-writing process. Ellison suggested it in a meeting with Thorpe and two other transportation officials, Thorpe said.

“We were just kind of puzzled as to why he thought we needed to send an objection,” Thorpe said Monday. “We had commented on the rules in the draft stage. I don’t think we ever sent a letter.”

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO
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