GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	1 

HOUSE BILL 1120

Short Title:  No Net Loss of Wetlands.	(Public)
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Sponsors: Representatives Ethridge; Colton, Flaherty, Fletcher, Gottovi, Hackney, Hightower, Kahl, Luebke, McGee, Stamey, and Withrow. 
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Referred to:  Environment.
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April 24, 1991

A BILL TO BE ENTITLED
AN ACT TO AMEND THE NORTH CAROLINA ENVIRONMENTAL PROTECTION LAWS TO PROVIDE ENHANCED PROTECTION FOR WETLANDS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-211 reads as rewritten:
"§ 143-211.  Declaration of public policy.
It is hereby declared to be the public policy of this State to provide for the conservation of its water and air resources. Furthermore, it is the intent of the General Assembly, within the context of this Article and Articles 21A and 21B of this Chapter, to achieve and to maintain for the citizens of the State a total environment of superior quality. Recognizing that the water and air resources of the State belong to the people, the General Assembly affirms the State's ultimate responsibility for the preservation and development of these resources in the best interest of all its citizens and declares the prudent utilization of these resources to be essential to the general welfare. It is the purpose of this Article to create an agency which shall administer a program of water and air pollution control and water resource management. It is the intent of the General Assembly, through the duties and powers defined herein, to confer such authority upon the Department of Environment, Health, and Natural Resources as shall be necessary to administer a complete program of water and air conservation, pollution abatement and control and to achieve a coordinated effort of pollution abatement and control with other jurisdictions. Standards of water and air purity shall be designed to protect human health, to prevent injury to plant and animal life, to prevent damage to public and private property, to insure the continued enjoyment of the natural attractions of the State, to encourage the expansion of employment opportunities, to provide a permanent foundation for healthy industrial development and to secure for the people of North Carolina, now and in the future, the beneficial uses of these great natural resources. The General Assembly recognizes that North Carolina's wetlands are a valuable and productive State resource.  It is the intent of the General Assembly that the Environmental Management Commission and the Department of Environment, Health, and Natural Resources exercise their powers and duties under this Article to protect and manage wetlands so as to promote the State's goal of no net loss of wetlands, as defined by acreage and ecological function.  It is the intent of the General Assembly that the powers and duties of the Environmental Management Commission and the Department of Environment, Health, and Natural Resources be construed so as to enable the Department and the Commission to qualify to administer federally mandated programs of environmental management and to qualify to accept and administer funds from the federal government for such programs."
Sec. 2.  G.S. 143-212 reads as rewritten:
"§ 143-212.  Definitions applicable to Article.
The following definitions apply to this Article:
(1)	'Area of the State' means a municipality, a county, a portion of a county or a municipality, or other substantial geographic area of the State designated by the Commission.
(2)	'Commission' means the North Carolina Environmental Management Commission.
(3)	'Department' means the Department of Environment, Health, and Natural Resources.
(4)	'Person' includes individuals, firms, partnerships, associations, institutions, corporations, municipalities and other political subdivisions, and governmental agencies.
(5)	'Secretary' means the Secretary of the Department of Environment, Health, and Natural Resources.
(6)	'Waters' means any stream, river, brook, swamp, wetland, lake, sound, tidal estuary, bay, creek, reservoir, waterway, or other body or accumulation of water, whether surface or underground, public or private, or natural or artificial, that is contained in, flows through, or borders upon any portion of this State, including any portion of the Atlantic Ocean over which the State has jurisdiction.
(7)	'Wetland' means those areas that have a predominance of hydric soils and are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."
Sec. 3.  Article 21 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143-214.1A.  Wetlands, State Wetland Conservation Plan, wetlands classifications, standards, duties of the Commission.
(a)	In addition to powers and duties assigned in G.S. 143-214.1, the Commission is directed and empowered to adopt and implement a State Wetlands Conservation Plan to meet the State goal of no net loss of wetland ecological functions. The Commission shall provide a copy of the plan to the General Assembly by April 15, 1992, and report annually to the legislature on progress in plan implementation.
(b)	The Commission shall develop and adopt rules implementing the plan pursuant to existing State water quality laws and section 401 of the federal Clean Water Act.  All rules adopted by the Commission pursuant to this section shall be adopted in accordance with the provisions of Chapter 150B of the General Statutes."
Sec. 4.  G.S. 113A-113 is rewritten to read:
"§ 113A-113.  Areas of environmental concern; in general.
(a)	The Coastal Resources Commission shall by rule designate geographic areas of the coastal area as areas of environmental concern and specify the boundaries thereof, in the manner provided in this Part.
(b)	The Commission may designate as areas of environmental concern any one or more of the following, singly or in combination:
(1)	Wetlands, as defined in G.S. 143-212(7), and contiguous areas necessary to protect those wetlands;
(2)	Estuarine waters, that is, all the water of the Atlantic Ocean within the boundary of North Carolina and all the waters of the bays, sounds, rivers, and tributaries thereto seaward of the dividing line between coastal fishing waters and inland fishing waters, as set forth in the most recent official published agreement adopted by the Wildlife Resources Commission and the Department of Environment, Health, and Natural Resources;
(3)	Renewable resource areas where uncontrolled or incompatible development which results in the loss or reduction of continued long-range productivity could jeopardize future water, food or fiber requirements of more than local concern, which may include:
a.	Watersheds or aquifers that are present sources of public water supply, as identified by the Department or the Environmental Management Commission, or that are classified for water-supply use pursuant to G.S. 143-214.1;
b.	Capacity use areas that have been declared by the Environmental Management Commission pursuant to G.S. 143-215.13(c) and areas wherein said Environmental Management Commission (pursuant to G.S. 143-215.3(d) or 143-215.3(a)(8)) has determined that a generalized condition of water depletion or water or air pollution exists;
c.	Prime forestry land (sites capable of producing 85 cubic feet per acre-year, or more, of marketable timber), as identified by the Department.
(4)	Fragile or historic areas, and other areas containing environmental or natural resources of more than local significance, where uncontrolled or incompatible development could result in major or irreversible damage to important historic, cultural, scientific or scenic values or natural systems, which may include:
a.	Existing national or State parks or forests, wilderness areas, the State Nature and Historic Preserve, or public recreation areas; existing sites that have been acquired for any of the same, as identified by the Secretary; and proposed sites for any of the same, as identified by the Secretary, provided that the proposed site has been formally designated for acquisition by the governmental agency having jurisdiction;
b.	Present sections of the natural and scenic rivers system;
c.	Stream segments that have been classified for scientific or research uses by the Environmental Management Commission, or that are proposed to be so classified in a proceeding that is pending before said Environmental Management Commission pursuant to G.S. 143-214.1 at the time of the designation of the area of environmental concern;
d.	Existing wildlife refuges, preserves or management areas, and proposed sites for the same, as identified by the Wildlife Resources Commission, provided that the proposed site has been formally designated for acquisition (as hereinafter defined) or for inclusion in a cooperative agreement by the governmental agency having jurisdiction;
e.	Complex natural areas surrounded by modified landscapes that do not drastically alter the landscape, such as virgin forest stands within a commercially managed forest, or bogs in an urban complex;
f.	Areas that sustain remnant species or aberrations in the landscape produced by natural forces, such as rare and endangered botanical or animal species;
g.	Areas containing unique geological formations, as identified by the State Geologist; and
h.	Historic places that are listed, or have been approved for listing by the North Carolina Historical Commission, in the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966; historical, archaeological, and other places and properties owned, managed or assisted by the State of North Carolina pursuant to Chapter 121; and properties or areas that are or may be designated by the Secretary of the Interior as registered natural landmarks or as national historic landmarks;
(5)	Areas such as waterways and lands under or flowed by tidal waters or navigable waters, to which the public may have rights of access or public trust rights, and areas which the State of North Carolina may be authorized to preserve, conserve, or protect under Article XIV, Sec. 5 of the North Carolina Constitution;
(6)	Natural-hazard areas where uncontrolled or incompatible development could unreasonably endanger life or property, and other areas especially vulnerable to erosion, flooding, or other adverse effects of sand, wind and water, which may include:
a.	Sand dunes along the Outer Banks;
b.	Ocean and estuarine beaches and the shoreline of estuarine and public trust waters;
c.	Floodways and floodplains;
d.	Areas where geologic and soil conditions are such that there is a substantial possibility of excessive erosion or seismic activity, as identified by the State Geologist;
e.	Areas with a significant potential for air inversions, as identified by the Environmental Management Commission.
(7)	Areas which are or may be impacted by key facilities.
(8)	Outstanding Resource Waters as designated by the Environmental Management Commission and such contiguous land as the Coastal Resources Commission reasonably deems necessary for the purpose of maintaining the exceptional water quality and outstanding resource values identified in the designation.
(9)	Primary Nursery Areas as designated by the Marine Fisheries Commission and such contiguous land as the Coastal Resources Commission reasonably deems necessary to protect the resource values identified in the designation including, but not limited to, those values contributing to the continued productivity of estuarine and marine fisheries and thereby promoting the public health, safety and welfare.
(c)	In those instances where subsection (b) of this section refers to locations identified by a specified agency, said agency is hereby authorized to make the indicated identification from time to time and is directed to transmit the identification to the Commission; provided, however, that no designation of an area of environmental concern based solely on an agency identification of a proposed location may remain effective for longer than three years unless, in the case of paragraphs (4)a and d of subsection (b) of this section, the proposed site has been at least seventy-five percent (75%) acquired. Within the meaning of this section, 'formal designation for acquisition' means designation in a formal resolution adopted by the governing body of the agency having jurisdiction (or by its chief executive, if it has no governing body), together with a direction in said resolution that the initial step in the land acquisition process be taken (as by filing an application with the Department of Administration to acquire property pursuant to G.S. 146-23).
(d)	Additional grounds for designation of areas of environmental concern are prohibited unless enacted into law by an act of the General Assembly."
Sec. 5. This act is effective upon ratification.