Department of Environmental Quality Annette Lucas, PE Environmental Management Commission Meeting November 10, 2016 Department of Environmental Quality

Recent Rulemaking Events July 14 EMC adopted the proposed Stormwater Rules. July 28 RRC staff provided a Request for Technical Changes Aug 9 DEQ staff responded to Request for Technical Changes. Aug 18 RRC approved 18 rules but not 15A NCAC 2H .1050(14), saying that the term “licensed professional” was too broad and unclear. This objection affected a total of 14 rules that referenced the terms “licensed professional” or “seal.” Sept 8 EMC adopted the revisions to the 14 rules tying licensure requirements to appropriate statutes. Sept 15 RRC objected to the 14 rules on the basis that the EMC does not have the authority to required a “licensed professional” in its standard permitting process. Department of Environmental Quality

Language the EMC approved in Sept. (14) LICENSED PROFESSIONAL. SCMs shall be designed by an individual who meets the North Carolina professional licensing requirements for the type of stormwater system proposed. As the term is used in this Section, “licensed professional” means an individual authorized by an occupational licensing board to design stormwater systems in accordance with Chapters 89A, 89C, 89E, or 89F of the General Statutes, and any other individual who can make a showing to the Director that the occupational licensing board by which the individual is licensed requires as a prerequisite of license issuance a demonstration of competence in the design of stormwater systems.

RRC Sept 2016 Objection “The agency lacks the statutory authority to set requirements of who can design stormwater systems, with the exception of fast-track permitting rules authorized under G.S. 143-214.7B.” § 143-214.7B. Fast-track permitting for stormwater management systems. The Commission shall adopt rules to establish a fast-track permitting process. . . The rules shall, at a minimum, provide for. . . The types of professionals that are qualified to prepare a permit application submitted pursuant to this section and the types of qualifications such professionals must have.

DEQ staff propose this language: (14) SCM DESIGNER QUALIFICATIONS. To the extent required by the rules, standards and codes of professional conduct adopted by professional licensing boards under Chapters 89A, 89C, 89E, or 89F of the NC General Statutes, SCMs and components of SCMs shall be designed by persons licensed under Chapters 89A, 89C, 89E, or 89F of the NC General Statutes. For the standard permitting process pursuant to Rule .1042 of this Section, SCMs and components of SCMs may also be designed by persons for whom a license is not required by any occupational licensing statute for the design of the type of stormwater system proposed. This rule creates no exceptions to the unauthorized practice of the professions described in Chapters 89A, 89C, 89E or 89F, or the rules, standards or codes of professional conduct promulgated by the applicable professional licensing boards.

DEQ staff also propose: 02H .1042 (2)(m) – Clarify that a seal is not required if the person designing the SCM is not required to be licensed as provided in Rule .1050(14). 02H .1043 (2), (3)(d) - Clarify that only individuals licensed pursuant to Chapters 89A or 89C are eligible to apply for fast-track stormwater permitting. 02H .1044 – Clarify that fast-track documents must be signed and sealed in accordance with Rule .1043(2) (in other words, by a PE or LA). 02H .1045(2)(f), (3)(d) – Clarify that qualified persons not governed by licensing boards may submit applications under the standard permitting process in accordance with Rule .1050(14).   Strike terms “licensed professional” and “seal” from the following rules because those requirements are addressed in Rules .1042, .1043,.1044, and .1050 or General Statutes governing licensing boards which require professional seals for soils reports, hydrogeologic evaluations, landscaping plans, and engineering documents: 02H .1019, .1051, .1052, .1053, .1054, .1055, .1056, .1059, and .1060.

In summary. . . DEQ staff suggest that the rules distinguish between who can apply for fast-track and who can design SCMs. We think this will enhance the clarity of the rule set. Recommendation: That the EMC adopt the proposed language or similar so that DEQ staff can take the rule set back to the RRC. We hope that the third time will be the charm!