IRRC Submits Extensive Comments On Proposed Erosion Control Regulation Changes

The Independent Regulatory Review Commission this week approved 28 pages of comments on the proposed revision of erosion and sedimentation control regulations creating a permit-by-rule program for oil and gas well drilling, requiring a riparian buffer in certain circumstances and extending permit requirements to smaller developments.

Citing extensive comments by the Chairs of the Senate and House Environmental Committees, other legislators, associations and affected groups, the IRRC said the changes proposed by the Environmental Quality Board are so significant the regulation should be submitted to the General Assembly for a full review prior to finalizing the rule.

"EQB has not fully contemplated the regulation's impact beyond its environmental benefit. Our specific concern relates to the breadth of the issues raised by commentators. Provisions in the EQB's proposal significantly affect a multitude of persons, entities and their interests. For these reasons, we believe the regulation represents a policy decision of such a substantial nature that it requires legislative review. To satisfy this criterion, we recommend that the EQB submit this regulation, along with a full and balanced explanation of its impacts, for legislative consideration before proceeding with a final-form regulation."

The IRRC also said the EQB failed to adequately assess the financial costs of complying with the regulation, in particular to sister state agencies like the departments of Transportation and Conservation and Natural Resources which both said would increase their cost of doing projects.

"Despite the public outreach conducted in developing this regulation, the EQB's evaluation of compliance costs is, by and large, discredited and contradicted by the comments submitted by other state agencies, associations and individual businesses. Many of these entities are listed by the EQB as stakeholders and part of its outreach in developing the proposed regulation. These public comments describe extensive impacts from the regulation. We strongly recommend that the EQB work directly with all of the commentators to explore and address economic and fiscal impact."

The IRRC also questioned why the EQB ignored the advice of the Water Resources Advisory Committee when they recommended soliciting comments on three key issues.

"The Water Resources Advisory Committee asked the EQB to solicit input on three issues. We commend the Water Resources Advisory Committee for the cogency of the three key issues it raised. The Water Resources Advisory Committee understood and anticipated the controversy of these three issues: permit-by-rule, long-term maintenance of PCSM and riparian forest buffers. For example, virtually the full spectrum of interested parties who commented on the permit-by-rule provision found the EQB's proposal to be fatally flawed either in its protection of the environment or in its practicality for a potential permit holder. Given this insightful guidance, we request an explanation of what factors caused the EQB to override its advisory committee and move forward with the regulation without further consideration of these issues. We will consider the EQB's response as part of our determination of whether the final-form regulation is in the public interest."

Before proceeding with a final rule, the IRRC recommended the EQB provide for public comment on any final-form regulation ahead of its consideration.

"More than 1,300 comments were submitted in support of the regulation citing improved environmental benefits from requirements such as buffers. At the same time, many of those supportive comments included opposition to the permit-by-rule provisions. Additionally, the proposed regulation raised many serious concerns from legislators, state agencies and trade associations on a broad range of issues. Should the EQB wish to proceed, we suggest that prior to submittal of a final-form regulation, the EQB allow for public comment on its amended final-form regulation in the form of an advanced notice of final rulemaking. This will allow the EQB to discover and address remaining concerns with the regulation prior to submittal of a final-form regulation."

A complete copy of the IRRC comments is available online.