November 22, 1994
Mr. Roger Jackson Deputy State Superintendent of Public Instruction Education Building 301 N. Wilmington Street Raleigh, N.C. 27601-2825
RE: Advisory Opinion; Application of the North Carolina Environmental Policy Act to the Superintendent’s Responsibilities Under N.C.G.S. §115C-521
Dear Mr. Jackson:
We reply to your request of May 19, 1994 for an opinion on the question of whether the State Superintendent of Public Instruction is required to comply with the North Carolina Environmental Policy Act, N.C.G.S. §113A-1, et seq. (NCEPA) in carrying out his responsibility under N.C.G.S. §115C-521 to approve plans for new school construction. For the reasons set out below, it is our opinion that the Superintendent is required to comply with the NCEPA in issuing certificates of approval under N.C.G.S. §115C-521.
Under N.C.G.S. §115C-521(c), local boards of education shall not "invest any money in any new building that is not built in accordance with plans approved by the State Superintendent to structural and functional soundness, safety and sanitation". The Superintendent has delegated authority to review and approve plans to the School Planning section of the Division of Facility Services in DPI. As required under the statute, plans are reviewed for structural and functional soundness, safety and sanitation. If approved, DPI issues a Certificate of Approval effective for one year from the date of issuance.
The scope of the DPI review includes the following (as set out in Procedures for School Building Projects, Department of Public Instruction):
Location, acreage, use and ownership of adjacent land;
Location and size of the facility in relation to existing buildings, roads, walks, utility service, etc.;
Indication of whether the site is located in a municipal watershed area, flood plain or involves wetlands;
Soil investigation report and other reports or studies made for the project;
Site plan showing topographic information, general elements of drainage and sedimentation control, utility requirements, etc.
Plumbing drawings showing source of water supply and waste disposal termination; and general development of the plumbing system;
The information required of the local school board indicates that DPI assesses both site selection and facility design in reviewing the planned construction for "structural and functional soundness, sanitation and safety".
The North Carolina Environmental Policy Act (NCEPA) requires preparation of an environmental document for any activity having the potential to affect the quality of the environment and also involving: 1. state action; and 2. expenditure of public moneys or the use of public lands. N.C.G.S. § 113A-4; T1 NCAC 25.0108(a). The document may take the form of an Environmental Assessment (EA) leading to a Finding of No Significant Impact (FONSI) or a full Environmental Impact Statement (EIS).
The NCEPA is directed toward the actions of state agencies, but also applies "in those instances where programs, projects and actions of local governmental units or bodies are subject to review, approval or licensing by State agencies in accordance with existing statutory authority". In those cases, the local governmental unit or body must supply information required by the State agencies for preparation of any environmental statement required by the NCEPA. N.C.G.S. §113A-9.
Under N.C.G.S. §113A-11, the Department of Administration has authority to adopt rules implementing the NCEPA; those rules include the following definitions as set forth in T1 NCAC 25.0108(b):
- (1)
- "Action" includes but is not limited to licensing, certification, permitting, the lending of credit, expenditures of public monies, and other similar final agency decisions the absence of which would preclude the proposed activity. Action does not include the allocation of any public funds transferred in accordance with a statutory or regulatory formula, which leave no discretion to the allocating agency.
- (3)
- "Public monies" includes all expenditures in support of the proposed activity by federal, state or local public or quasi-public entities from whatever source derived, but does not include resources used solely for processing a license, a certificate, or a permit; the lending of credit; or the resources used for the provision of technical services.
There is no question that school construction involves an expenditure of "public monies" as defined in rules adopted by the Department of Administration to implement the NCEPA. The Superintendent’s issuance of a certificate of approval for proposed school construction also appears to meet the definition of a state "action" as defined in T1 NCAC 25.0108(b) in that it is a "final agency decision the absence of which would preclude the proposed activity". The scope of DPI’s review further indicates that the review process specifically includes site selection issues with environmental implications. Based on those two findings, the Superintendent would be required to comply with the requirements of the NCEPA in issuing certificates of approval.
As noted above, compliance with the NCEPA will not always require preparation of an Environmental Impact Statement. The Department of Public Instruction may adopt minimum criteria defining certain construction as falling below a threshold at which there is potential for a significant effect on the environment and exempt that construction from the requirement for an environmental document. In those cases where a document is required, the Superintendent may place the burden of gathering the necessary information on the local school board proposing the school construction. In many cases, an environmental assessment, rather than a full environmental impact statement, will probably be sufficient.
We hope this responds to your question. Please call if you have further questions about compliance with the requirements of the NCEPA.
Daniel C. Oakley Senior Deputy Attorney General
Robin W. Smith
Assistant Attorney General