Lily Faulconer. to their infrastructure and livelihood as a result of Hurricanes Matthew and Florence. Hurricane

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1 BUILDING BACK BETTER WITH BETTER BUILDING CODES Lily Faulconer In less than a two-year period, North Carolina communities have faced immense damages to their infrastructure and livelihood as a result of Hurricanes Matthew and Florence. Hurricane Matthew caused an estimated $4.8 billion in damages when it hit North Carolina in October Though damages are still being calculated from Florence, which made landfall in September 2018, they are expected to be much higher, with early estimates predicting losses over $15 billion. 2 As leaders look to rebuild communities in the wake of Florence, much conversation has focused on building back better : rebuilding communities in ways that are resilient in the face of a changing climate that will continue to bring extreme weather events to the state. One of the actions identified by the North Carolina Office of the Governor in an early October 2018 press release related to the idea of developing resilient communities supports the construction of resilient buildings. 3 This paper explores the ways that the law can create resilient communities through developing, revising, and enforcing building codes. Building codes regulate construction and maintenance; with responsible, innovative, and effective codes, homes will be able to withstand extreme weather events like hurricanes, particularly those with high winds and massive flooding. To demonstrate the impact that building codes can have on the development of resilient communities, in Part I, this paper will explore how codes are created 1 One Year Later: North Carolina Continues Recovering from Hurricane Matthew, N.C. OFFICE OF THE GOVERNOR (Oct. 3, 2017), 2 See Patti Dom, Hurricane Florence damage estimated at $17 billion to $22 billion and could go higher Moody's Analytics, CNBC (Sept. 17, 2018), 3 Governor Outlines Priorities for Hurricane Florence Recovery: Emphasis on Building Stronger and More Resilient Communities, N.C. OFFICE OF THE GOVERNOR (Oct. 1, 2018), 1

2 and implemented across the United States and the competing interests that impact their development and overall effectiveness. Part II will then discuss how codes have helped other states build back better. Part III will provide a brief history of the North Carolina code. Finally, Part IV will propose lessons North Carolina could learn from other states and suggestions as to improvements to the North Carolina code that could mitigate hurricane damages in the future. I. CREATING AND IMPLEMENTING CODES ACROSS THE UNITED STATES Building codes began to emerge in the United States in the 1800s in response to safety concerns related to fires in densely populated urban areas. 4 These codes, which were originally designed to address fire risk, have evolved to include provisions related to other natural hazards such as earthquakes, tornadoes, and hurricanes. 5 They establish procedures for the design, construction, and upkeep of buildings. 6 Codes also create safety standards that promote the health and well-being of building occupants, be it employees of a company in a large city or homeowners in a suburban neighborhood. 7 The Federal Emergency Management Agency ( FEMA ), responsible for disaster relief in the United States, says that building code adoption and enforcement is one of the strongest strategies jurisdictions can take to protect a community against the effects of natural hazards. 8 Building codes in the United States vary among each of the 50 states, as the country spans a vast area and encompasses numerous climates, each posing unique natural hazards. 4 Building Codes Fact Sheet, FEMA BUILDING SCIENCE BRANCH (Feb. 5, 2013), [hereinafter Building Codes Fact Sheet]. 5 6 Building Codes, FED. EMERGENCY MGMT. AGENCY, (last updated Apr. 16, 2018, 4:01 PM). 7 8 Building Codes Fact Sheet, supra note 4. 2

3 Unsurprisingly, these regional differences are reflected in the way building codes emerged nationwide. Building codes evolved under three main regional organizations: Building Officials and Code Administrators International, Inc. ( BOCA ), International Conference of Building Officials ( ICBO ), and Southern Building Code Congress International, Inc. ( SBCCI ). 9 Though regional standards are important in creating effective codes for various geographic areas, these organizations came together to establish the International Code Council ( ICC ) in The ICC is a nonprofit organization that releases International Codes, known as I-Codes, on building, green construction, plumbing, and other areas. 11 The codes are modified every three years. 12 While codes are not binding on any state government, all 50 states have adopted the single building code created by the ICC at either a state or jurisdictional level. 13 Local and state jurisdictions are responsible for adopting and enforcing building codes. 14 However, many groups, including developers, construction supply companies, homeowners, and insurance agencies, have an interest in building codes and can be involved in their design and implementation. Codes establish the materials that may be used for construction, the inspections required before, during, and after building projects, as well as ventilation and other safety systems, such as accessible exits, that must be integrated into designs. 15 Changes to codes can add costs to construction by requiring new materials or more inspections, which makes it more 9 About ICC, INTERNATIONAL CODE COUNCIL, [hereinafter ICC] Building Codes Fact Sheet, supra note ICC, supra note Building Codes Fact Sheet, supra note

4 expensive to buy a home, especially in states with strict codes like Florida. 16 On the reverse side, homes that are more or less equipped for storm damages can drive insurance prices and influence the market in certain areas. 17 Additionally, if buildings are constructed to be resilient in the face of disaster, aid costs are reduced as both the natural and built environment are preserved and people are able to stay in their communities. 18 The following section explores how building codes have been changed in other states and the resulting resiliency of communities where these changes have taken place. II. BUILDING BACK BETTER: BUILDING CODE CHANGES AND IMPACTS IN FLORIDA AND TEXAS In 1992, Hurricane Andrew became one of the most expensive disasters in United States history. 19 Making landfall as a Category 4 storm, Andrew caused immense damage to infrastructure. 20 Ninety percent of homes in the path of Andrew experienced roof damage; of these, 33% sustained severe damage. 21 Insurance companies went bankrupt as insured losses totaled over $24 billion. 22 When Andrew made landfall in Florida, there were reportedly up to 26 different building codes in effect in South Florida. 23 However, one thing was common among the various regulatory schemes: none were established that properly prepared property owners for a storm of 16 Laura Kusito and Arian Campo-Flores, Homes Built to Stricter Standards Fared Better in Storm, WALL STREET J. (Sept. 16, 2017), Alan Gomez, Hurricane Irma Could Test Florida's Hurricane Andrew-inspired Building Codes, USA TODAY (Aug. 10, 2017), 18 Building Codes Fact Sheet, supra note Gomez, supra note Nick Meloy et al., Roof Damage in New Homes Caused by Hurricane Charley, J. PERFORMANCE OF CONSTRUCTED FACILITIES, 97 (Mar./Apr. 2007). 22 Gomez, supra note

5 that strength. 24 In response to the devastating losses suffered in both the public and private sectors, Florida drafted statewide codes in 2001 which created more stringent requirements for building. 25 These codes were adopted in 2002 and remain some of the strictest in the nation; they were ranked as the most effective in the southeast in a recent report published by the Insurance Institute for Business and Home Safety. 26 Florida s 2002 code required not only different materials for construction, but also created different, often more extensive, processes for inspection and maintenance. 27 As a result, builders have complained of the cost of compliance with the stricter regulations. 28 In Florida, regulatory compliance adds more than 20% to the price of a home than in most other areas of the United States. 29 However, these up-front costs have saved Floridians money in the long run, limiting property losses from hurricanes rivaling Andrew in both 2004 and In 2004, Florida was hit with four hurricanes in one season. 31 The first and most severe of these storms, Hurricane Charley, made landfall as a Category 4 storm, surprising forecasters as it changed path and strength quickly. 32 A study was conducted to assess the effectiveness of the post-andrew building codes following Charley in Charlotte County, Florida. 33 A main focus of the study was to determine if the codes resulted in fewer insurance claims per policy and lower Rating the States: An Assessment of Residential Building Code and Enforcement Systems for Life Safety and Property Protection in Hurricane-Prone Regions, INS. INST. FOR BUS. & HOME SAFETY (Mar. 2018), [hereinafter Rating the States]. 27 Kusito and Campo-Flores, supra note ; Hurricane Charley: Nature s Force v. Structural Strength, INS. INST. FOR BUS. & HOME SAFETY (2004), [hereinafter Hurricane Charley]

6 severity of such claims. 34 Researchers discovered that homes built under the new codes had a reduced claim frequency of 60%. 35 When losses did occur, the claims were 42% less severe for homes that were built with the modern codes. 36 Florida did not experience another hurricane rivaling the strength of Andrew or Charley until 2017, when Hurricane Irma hit the state as a Category 4 storm. 37 Once again, it appeared that homes built with the codes adopted and revised since 2002 fared better in the storm. 38 A Wall Street Journal article written just days after the storm described the reactions of homeowners who had rebuilt in the aftermath of Andrew whose homes were virtually untouched by Irma. 39 Naples homeowners Stephany and Michael Carr said that though there were tree branches bouncing off their roof, their house remained unscathed in the storm. 40 This was quite a contrast to Andrew, when the roof (built under the old standards) was nearly blown completely off their home. 41 Ms. Carr expressed confidence in the new codes, saying, For anyone who doubts these codes, I invite them to sit in a pre-code structure in a Category 3 storm or higher. 42 As structures become safer and more disaster-resistant in Florida, they appear to be saving consumers money. 43 Austin College professor Kevin Simmons, who led research that examined the insured-loss data from , found that for every additional $1 spent in Perry Stein et al., Destructive Winds, Rain Hit Florida as Hurricane Irma Makes Landfall in the Keys, WASH. POST (Sept. 10, 2017), 38 See generally Kusito and Campo-Flores, supra note

7 construction costs in Florida, $6 was saved in losses. 44 Florida s revised code also reduced windstorm losses by over 70%. 45 In 2017, Hurricane Harvey made landfall in Texas, surpassing Andrew in disaster costs. 46 Texas does not have a statewide building code, but a study of 213 impacted homes conducted by the Insurance Institute for Business & Home Safety (IBHS) found that generally, new homes built according to modern codes, fared better than those built to older standards. 47 Asphalt shingles were used on 85% of the homes studied; the high winds of Harvey were more likely to damage homes with lower-quality asphalt roof shingles. 48 Lead study author and IBHS vice president Dr. Tanya M. Brown-Giammanco, shared the following regarding Harvey damages: If the homes and businesses we investigated had been built to more resilient standards, recovery in these wonderful communities would not have been as painful or as prolonged. We urge homeowners and business owners to look at the science and make the choice to build stronger as they repair or replace their homes or business facilities in this special part of Texas 49 Brown-Giammanco s perspective highlights the importance of building and modifying homes to be resilient in our changing climate. An August 2018 survey found that 10% of Texans whose homes were impacted by Harvey were still displaced Kusito and Campo-Flores, supra note Angela Fritz, Harvey, Irma and Maria Now in the Top 5 Costliest Hurricanes on Record, NOAA Says, WASH. POST (Jan 30, 2018), 47 Stephanie K. Jones, IBHS Study Chronicles Hurricane Harvey Wind Damage, Provides Takeaways, INS. J. (Aug. 8, 2018), Brandon Formby, Survey: 10% of Texans Displaced by Harvey Still Haven't Gone Home, INS. J. (Aug. 23, 2018), 7

8 Adopting and enforcing modern building codes can reduce these displacement costs and limit the disruption that natural disasters have on people s livelihood and overall welfare. 51 Florida s post-andrew hurricane damages provide a clear indication that structures built under the modern codes fare better in disaster. The struggles faced by Texas in the wake of Harvey highlight the need for responsible and resilient construction. The following sections explore how North Carolina has created and implemented its building codes and what these codes could contribute to Governor Cooper s goal of achieving greater resiliency as the state rebuilds its communities. III. NORTH CAROLINA S CODE: PAST AND PRESENT North Carolina is one of the states that has adopted a statewide building code and enforcement process. The North Carolina Building Code Council was established by the North Carolina General Assembly in 1933 and released the first set of state codes in 1935, which were approved by the General Assembly in Today, the North Carolina Building Code Council, housed in the Office of the State Fire Marshal, is a bipartisan group of 17 members selected by the governor to be in charge of the state s codes. 53 In 2013, the council voted to require revisions to the building code every six years rather than three, the aforementioned industry standard. 54 This means that the state is currently 51 See Hurricane Charley, supra notes N.C. State Bldg. Code 1967 Edition, N.C. DEP T OF INS., Foreword, 1.pdf. 53 Engineering and Codes, N.C. DEP T OF INS., =Building_Code_Council. 54 Ari Natter, North Carolina Weakened Its Building Codes in 2013, BLOOMBERG (Sept. 13, 2018),

9 enforcing 2009 I-Codes and will stay one or two cycles behind the national model codes released by the I.C.C. 55 Additionally, in 2015, North Carolina removed a requirement in its code related to the permanent installation of shutters in high-wind areas. 56 Flying debris is a large cause of hurricane and other windstorm related damage, and removing this requirement increases the possibility of wind damage should homeowners and builders in the state choose not to take additional precautions outside of those required by the code in order to secure their properties. 57 In its 2018 report, the Insurance Institute for Business and Home Safety criticized these North Carolina Building Council decisions and encouraged the state to integrate more stringent requirements into its codes in the future. 58 The following section contains suggestions as to actions North Carolina should take to build back better. It explores the Insurance Institute recommendations, lessons from other states, and other considerations for state leaders as they work to create resilient communities. IV. NORTH CAROLINA CODE: FUTURE To improve the North Carolina code in the future, the Insurance Institute suggests that North Carolina require continuing education for contractors and plumbers and implement licensing requirements for roofing contractors in order to improve its code. 59 According to the report, there are little to no continuing education programs for these kind of industry professionals required in any state. 60 Creating educational programs would allow professionals to keep up with trends and best practices and model for other states ways to engage builders with the concept of resilient construction outside of the formal building code. 55 Rating the States, supra note Kusito and Campo-Flores, supra note Rating the States, supra note

10 To promote resilient construction, the Insurance Institute suggests restoring the more stringent requirements into the code and keeping up with the national ICC models instead of operating two cycles behind. Right now, homes rebuilt after Florence will be constructed in compliance with the codes adopted by the state six years ago, two cycles behind the national model. To create resilient communities in the wake of this disaster, North Carolina needs to ensure reconstructed buildings can withstand heavy wind and rain and reflect the most innovative industry standards. More stringent requirements for construction, particularly on the coast, may have mitigated damages from Matthew and Florence. Moving forward, however, it is important to focus on how to protect our communities from future damages, not merely reflect on what should have been done to protect them in the past. Building back better will help reduce future losses. As the state looks to create resilient communities through resilient construction in the aftermath of Florence, it should consider what it is willing to ask of consumers now to prevent devastation in the future. The demonstrated success of Florida s more stringent codes in the face of strong storms indicates that up-front costs to builders and homebuyers can save a large amount of disaster relief and insurance costs long-term. While these changes seem expensive now, they will save more in the future, particularly in disaster relief and displacement costs. If we better prepare our codes for disaster, we better prepare our citizens, too. 10

11 THE SWINE FLOODPLAIN BUYOUT PROGRAM: A PROPOSED SOLUTION TO FLOOD-RELATED HOG LAGOON POLLUTION Jasmine Brodie Washington I. INTRODUCTION Animal Feed Operations ( AFO ), and their larger counterparts Concentrated Animal Feeding Operations ( CAFOs ), have been criticized by environmentalists, health professionals, community members, and others for decades. 1 Hurricane Florence and fears of hog lagoon flooding, along with new state legislation and nuisance lawsuits, 2 have continued the discussions on the risk that these operations pose to the public. In the aftermath of Hurricanes Matthew and Florence, concerned groups are paying new attention to the environmental risk posed by lagoons located in the low-lying areas of eastern North Carolina. 3 This attention has led to new funding for a program to buy out hog feeding operations and convert the land into natural space through permanent conservation easements. This paper will discuss Phase 5 of the Swine Floodplain Buyout Program ( buyout program ). First, an overview of the current state of AFOs and hog lagoons in North Carolina is given. Next, a brief history of the buyout program, and its renewed funding. Eligibility, the application process and selection are then evaluated, followed by the program s supporters and an example of similar a program. 1 See e.g. Carrie Hribar, Understanding Concentrated Animal Feeding Operations and Their Impact on Communities, NATIONAL ASSOCIATION OF LOCAL BOARDS OF HEALTH (2010), see also Michael Greger, Gowri Koneswaran, The Public Health Impacts of Concentrated Animal Feeding Operations on Local Communities, 33 FAM COMMUNITY HEALTH 373, (2010); Adam Skolnick, The CAFO Industry s Impact on the Environment and Public Health, SIERRA MAGAZINE (Feb. 23, 2017) Travis Fain, Third hog farm trial starts in Raleigh, pitting pork against property rights, WRAL (July 11, 2018) 2 Anne Blythe, Hog Farmers Win New Protections as Lawmakers Override Roy Cooper's Veto, THE NEWS & OBSERVER (June 27, 2018), 3 Tyler Dukes, What we know so far about Florence s environmental impact, WRAL (Oct. 4, 2018), 1

12 The renewed funding for an additional phase of the buyout program is not sufficient to close all hog lagoons that are in the 100-year floodplain, however it may be a small solution to the environmental threats posed by hog lagoons. II. ANIMAL FEEDING OPERATIONS IN NORTH CAROLINA Since 1992, the North Carolina Department of Environmental Quality ( DEQ ), formerly known as the North Carolina Department of Environmental and Natural Resources, has overseen the AFO Program. 4 The AFO Program regulates animal operations, which are defined by section B of the North Carolina General Statutes 5 as any agricultural feedlot activity involving 250 or more swine, 100 or more confined cattle, 75 or more horses, 1,000 or more sheep, or 30,000 or more confined poultry with a liquid animal waste management system. 6 Many of these animal operations use anaerobic lagoons to manage their liquid waste. 7 These lagoons are earth basins that are several feet deep, where animal waste and water are collected in order to break down the feces. 8 These lagoons are not aerated, heated or mixed. 9 Once the contents within a lagoon have sat for the necessary period of time, the contents are removed from the lagoon and typically sprayed as fertilizer on local crop fields AFO Program Summary, N.C. DEP T OF ENVTL. QUALITY, (last visited Jan. 4, 2018). 5 6 N.C. GEN. STAT B(1) (2013). 7 Hog Farms & Hurricanes: A Primer on Lagoons and Flooding, NC PORK COUNCIL (Sep. 11, 2018), [hereinafter Hog Farms & Hurricanes]. 8 Wynne Davis, Overflowing Hog Lagoons Raise Environmental Concerns in North Carolina, NPR NEWS (Sep. 22, 2018), 9 Wastewater Technology Fact Sheet: Anaerobic Lagoons, UNITED STATES EPA 1, 3 (September 2002), 10 AFO Program Summary, supra note 4. 2

13 A. The State of AFOs and Hog Lagoons in North Carolina Research has shown that AFOs and hog lagoons pose a risk to human and environmental health. 11 Studies have shown the negative effects that AFOs and CAFOs can have on ground water, surface water, and air quality. 12 A recent study from Duke University found that North Carolina communities located near hog CAFOs had higher all-cause and infant mortality, mortality due to anemia, kidney disease, tuberculosis, septicemia, and higher admissions/[emergency department] visits of [low birth weight] infants. 13 While the study also states that these findings do not establish causality, 14 it comes on the heel of several lawsuits against pork manufacturers in North Carolina. In November of 2017, there were twenty-six cases with pending motions comprising the NC Swine Farm Litigation. 15 In April of 2018, the jury in a federal case returned a verdict for ten neighbors of hog CAFOs and awarded them each $75,000 in compensatory damages and fifty million dollars in punitive damages. 16 The amount of punitive damages awarded was later reduced by the judge to $250,000 per defendant. 17 The suit was brought against Murphy-Brown, a subsidiary of Smithfield Foods, not against the farmers themselves, and focused on the industry s use of anaerobic lagoons. 18 The neighbors complained of the nuisance created by the 11 See Hribar, supra note 1, at at Julia Kravchenko et al., Mortality and Health Outcomes in North Carolina Communities Located in Close Proximity to Hog Concentrated Animal Feeding Operation, 79 N.C. MED. JOURNAL 278, 278 (Sep-Oct 2018). 14 at See In re NC Swine Farm Nuisance Litig., No. 5:15-CV BR, 2017 WL , at *1 (E.D.N.C. Nov. 8, 2017). 16 McKiver v. Murphy-Brown LLC, No. 7:14-CV-180-BR, 2018 LEXIS 76286, at *2 (E.D.N.C. May 7, 2018). 17 at *5. 18 See Blythe, supra note 2. 3

14 odor, flies, and noise from the operations. 19 Later in 2018, damages were awarded to plaintiffs in two additional cases against Murphy-Brown. 20 The influx of lawsuits led the North Carolina legislature to pass the NC Farm Bill of 2018, which now greatly restricts the circumstance in which nuisance action may be filed against hog farmers, and other agricultural operations. 21 The bill was ratified on June 15 and vetoed by Governor Roy Cooper on June Two days later, the General Assembly overrode the veto in a vote in the North Carolina House, and 37-9 vote in the North Carolina Senate. 23 In the aftermath of Hurricanes Mathew and Florence, national attention turned to the flood risks associated with hog lagoons. By design, lagoons are meant to sustain heavy rainfall and flooding. 24 Lagoons and animal production housing are constructed on the highest point of elevation on the property. 25 Lagoons must also have buffers of at least nineteen inches to minimize the risk of overflow or inundation during severe weather. 26 Due to their elevation and buffers, lagoons and production housing are the only structures above water at times after severe storms or flooding See McGowan v. Murphy-Brown, LLC, No. 7:14-CV BR, 2018 LEXIS (E.D.N.C. Dec. 26, 2018). See also Katherine Tovar, An Update on North Carolina Nuisance Lawsuits, IOWA STATE UNIV. CTR. FOR AGRIC. LAW AND TAXATION (Aug. 31, 2018), 21 An Act to Make Various Changes to the Agricultural Laws, 2018 N.C. SESS. LAWS NC Farm Act of 2018, N.C. GEN. ASSEMBLY, (last visited Jan. 6, 2019) Hog Farms & Hurricanes, supra note

15 There are currently over 3,700 permitted hog lagoons in the state of North Carolina. 28 Analyses have shown that there are at least forty-five active North Carolina farms that are located in the 100-year 29 and 500-year floodplains. 30 According to DEQ, a lagoon is inundated when surface water is surrounding and flowing into the lagoon. 31 A lagoon discharges (overtopping) when material is or was leaving the lagoon. 32 Fifty-five hog lagoons were inundated with floodwater during Hurricane Floyd in Fourteen lagoons were inundated during Hurricane Matthew in During Hurricane Florence, ten lagoons were inundated, thirty-three were discharged, and six lagoons sustained structural damage. 35 III. THE FLOODPLAIN BUYOUT PROGRAM A. Program Overview The Swine Floodplain Buyout Program ( buyout program ) is a program to purchase permanent conservation easements on properties within the 100-year floodplain that are currently used for swine production. 36 The purpose of the program is to reduce the potential for pollution from active animal operations by purchasing an owner s certification to operate a 28 List of Permitted Animal Facilities, N.C. DEP T OF AGRIC. & CONSUMER SERVS. (Jan. 26, 2018), xls?SdODtHdc46AxmsgSZ0z_o0dLzRFbNgZs. 29 According to the Federal Emergency Management Agency (FEMA) the 100-year floodplain are the areas with a 1-percent annual change of flooding. Flood Zones, FEMA DEP T OF HOMELAND SEC. (Sep. 14, 2018), 30 Michael Biesecker & Gary Robertson, Pollution Fears: Swollen rivers swamp ash dumps, hog farms, THE ASSOCIATED PRESS (Sep. 17, 2018), 31 DEQ Dashboard, N.C. DEP T OF ENV. QUALITY (Oct. 9, 2018), Hog Farms & Hurricanes, supra note See DEQ Dashboard, supra note 31; see also Dukes, supra note Swine Floodplain Buyout, N.C. DEP T OF AGRIC. & CONSUMER SERVS. (last visited Jan. 6, 2019). 5

16 feedlot within the 100-year floodplain. 37 The buyout program is currently being run by the North Carolina Department of Agriculture and Consumer Services ( NCDA&CS ), in partnership with the USDA Natural Resource Conservation Service ( NRCS ). 38 The buyout program was created in November of 1999, following the devastation of Hurricanes Floyd, Irene, and Dennis. 39 Since then, the Clean Water Management Trust Fund Board of Trustees has authorized four grants, allocating $18,699,500 for the NCDA&CS Soil & Water Conservation Division to manage the buyout programs. 40 In these four phases a total of 138 producers applied for the program, and forty-three were accepted. 41 Phase 1 of the buyout program facilitated the closure of seventeen hog operations, with $5.7 million in funding. 42 Phase 2 began in 2002, and bought out a total of eighteen hog operations, with $6.1 million. 43 Phase 3 began in 2004, and bought out five hog operations, with $3.8 million. 44 Phase 4 began in 2007 and bought out three operations with $3 million in funding. 45 Within these forty-three operations, there were 106 lagoons, and 1,218 acres of that were converted into conservation easements. 46 Research by the NCDA&CS Emergency Programs Division has shown that thirty-two of the forty-three hog farms that have been closed through the buyout program would have likely 37 AFO Program Summary, supra note See id. 39 Update on the Program to Acquire Conservation Easements on Swine Operations in the 100-Year Floodplain, N.C. DEP T OF AGRIC. & CONSUMER SERVS., (last visited Jan. 6, 2018) [hereinafter Update on the Program to Acquire Conservation Easements] NC secures funding to continue program to close hog farms located in 100-year floodplain, NC PORK COUNCIL (Apr. 17, 2018), year-floodplain/ Update on the Program to Acquire Conservation Easements, supra note 39. 6

17 flooded during Hurricane Matthew. 47 For over ten years the buyout program lacked the funding necessary to continue. New funding was announced in 2018 for the buyout program. 48 The NCDA&CS reports that the buyout program has received $2.5 million in funding from the USDA s Regional Conservation Partnership Program grant. 49 B. Eligibility and Restrictions In order to be eligible for the buyout program, the operation must be located within the 100- year floodplain, be subject to the requirements for obtaining a Certificate of Coverage under the Swine Waste Operation General Permit, and must have been in active use for animal production on or since October 8, Overall participants in the program are agreeing to relinquish their facility s permits and allow a permanent conservation easement on the land containing [their] production facilit[y]. 51 Continued agricultural use of the permanent easement is allowed, but comes with restrictions and requirements. 52 The easement would: Prohibit feedlots within the portion of the tract(s) covered by the easement.... The easement would specifically allow continued use of the site for other agricultural production operations such as pasture-based beef production, rowcrop/hay production and vegetable farming, but it would prohibit use of the easement area as a spray field for swine waste. Prohibit non-agricultural development of the portion of the tract included in the easement area. Require development and implementation of a soil and water conservation plan for the area within the 100-year floodplain. NCDA&CS and NRCS will provide cost share to reimburse the landowner for a portion of the cost of installation of best management practices included in the plan. Require implementation of a permanent 50-foot wide forested riparian buffer on all perennial and intermittent streams and a 35-foot grassed filter strip on all field ditches located within or immediately contiguous to the tract(s) covered by the easement, where technically feasible. NCDA&CS will reimburse the landowner for 100% of the cost of installing the buffer. 47 NC secures funding to continue program to close hog farms located in 100-year floodplain, supra note Swine Floodplain Buyout, supra note

18 Restrict the location of hazardous materials storage (to include fuel and fertilizer) and mixing areas to minimize water pollution potential from leaks, spills and flooding. 53 Since participants are required to give up their permits and waste management plan certification, they are barred from relocating their facility and continuing existing operations. 54 They are not barred from operating a new swine facility outside of the floodplain. 55 Participants are allowed to use the permanent easements for agricultural production; however, new production must be low intensity. 56 Production housing can be used for things such as hay storage or a greenhouse, but not for the confinement of animals. 57 Lagoons can remain in use as irrigation or fish ponds, but they may not be used for intensive aquacultural production. 58 There are also additional restrictions for the easement buffers. 59 C. The Application and Selection Process The buyout program is voluntary, and producers must apply and be selected to participate. 60 Interested producers must submit an application in which they must list an offer to NCDA&CS for the total dollar amount they are willing to accept as compensation for ceasing production... and allowing a permanent conservation easement to be place on their property. 61 The application can be found on the NCDA&CS website. Among other things, the two-page application asks producers to detail the number of times the property was flooded prior to 2016, Program to Acquire Conservation Easements on Swine Operations within the 100-Year Floodplain Frequently Asked Questions, N.C. DEP T OF AGRIC. & CONSUMER SERVS., 3 (2018) [hereinafter FAQ], at at at Swine Floodplain Buyout, supra note

19 and the number of acres offered for inclusion in the conservation easement. 62 Applications must also include a map depicting the tract containing the swine operation and illustrating the area being offered for inclusion in the easement area. 63 The tract must contain at least twentyacres within the 100-year floodplain, as this is the minimum acreage that the easement must cover. 64 The proposed area for the easement must also include all streamside lands on the tract that receive surface drainage from the swine production houses or lagoon(s). 65 NCDA&CS and NRCS advise applicant producers to consider several factors, including opportunity cost and current debts, when preparing their bids. 66 Participants in the buyout program are responsible for closing their lagoons in accordance with established standards of NRCS. 67 The cost for lagoon closure, implementing the conservation plan, implementing buffers, and necessary surveys are not part of the bid, because 100 percent of these cost will be reimbursed to participant producers. 68 For Phase 5, applications must be submitted between October 10 and November 30, In the first four phases of the buyout program, the NCDA&CS Division of Soil & Water Conservation created an advisory panel with representatives from multiple institutions with vested interest in North Carolina swine production, including the NC Pork Council, NC Cooperative Extension Services, and the Conservation Council of North Carolina. 70 This advisory panel determined which bids would be accepted by assigning point values to six water 62 Application for Swine Facility Buyout, N.C. DEP T OF AGRIC. & CONSUMER SERVS., 63 FAQ, supra note 55, at Swine Floodplain Buyout, supra note FAQ, supra note 55 at Swine Floodplain Buyout, supra note FAQ, supra note 55, at Update on the Program to Acquire Conservation Easements, supra note 39. 9

20 quality criteria, and weighing those points against the applicant s bid price. 71 These criteria included structural conditions, lagoon dike elevation, production house elevation, flood history, distance to protected bodies of water, and the applicant s willingness to install a 100 foot buffer (instead of the minimum 50 buffer) adjacent to all blue line streams in the easement area. 72 For Phase 5, the NCDA&CS will offer acceptance to applicants that provid[e] the greatest overall water quality value. 73 They will consider the bid price in relation to the facility s susceptibility to flooding, the size of the operation, the structural conditions of the lagoon, and downstream water uses. 74 Eligible applicants will then be assigned to one of three priority groups: High Priority Sites (Group A), Medium Priority Sites (Group B), and Low Priority Sites (Group C). 75 The program will offer participation to applicants in Group A first, followed by Group B, then C. 76 D. Supporters The North Carolina Pork Council, the Farm Bureau, North Carolina Cooperative Extension Programs, the Conservation Council and members of the General Assembly have expressed support for the buyout program. Steve Troxler, North Carolina Agriculture Commissioner, called the program a successful approach to reducing the number of swine operations at risk of flooding in future storm events [that] gives farmers options. 77 The NCDA&CS reports that Phase 5 of the program is being funded by federal resources FAQ, supra note 55, at NCDA&CS Announces Fifth Phase of Voluntary Floodplain Swine Buyout Program, N.C. DEP T OF AGRIC. & CONSUMER SERVS. (Oct. 11, 2018), nebuyoutprogram.htm. 78 Swine Floodplain Buyout, supra note

21 The Swine Floodplain Buyout Program is not the only program of its kind. With $6 million in funding, the N.C. Foundation for Soil and Water Conservation s Inactive Animal Waste Lagoon Closure Program facilitated the closure of 226 inactive animal waste lagoons. 79 This program ran from , and remediated over 277 million gallons of waste. 80 IV. CONCLUSION If past numbers are any indication of future buyout cost per operation, then the $2.5 million in funding will facilitate the closure of 1-3 operations. This will leave dozens of hog farms and lagoons susceptible to structural damage in the next hurricane or severe weather event. It should also be remembered that the buyout program only funds the closure of hog lagoons. As of January 2018, there were over 4,200 permitted animal waste lagoons across the state of North Carolina. 81 For now, the Swine Floodplain Buyout Program may be one small solution to the environmental issues that swine AFOs bring. 79 Inactive Animal Waste Lagoon Closure Program, NORTH CAROLINA SOIL & WATER CONSERVATION, (last visited Jan. 4, 2019) List of Permitted Animal Facilities, supra note