GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	1 

SENATE BILL 129*

Short Title:  Water Transfer Permits.	(Public)
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Sponsors: Senators Block; Tally, Cochrane, and Ward.
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Referred to:  Environment and Natural Resources.
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February 20, 1991

A BILL TO BE ENTITLED
AN ACT TO REQUIRE REGISTRATION OF ALL WATER TRANSFERS AND TO REQUIRE A PERMIT FOR THE TRANSFER OF ONE MILLION GALLONS OR MORE OF WATER PER DAY FROM ONE RIVER BASIN TO ANOTHER.
The General Assembly of North Carolina enacts:
Section 1.  Article 21 of Chapter 143 is amended by adding a new Part to read:
“Part 2A.  Regulation of Water Transfers.
"§ 143-215.22A. Definitions.
The following definitions apply to this Part.
(1)	‘Losing river basin' means a river basin which sustains a decrease in water as the result of a transfer of water to a different river basin and there is no significant return of the water to the river basin of origin.
(2)	‘River' means any body of water bearing the designation ‘river' on the latest edition of the appropriate U.S. Geological Survey 7.5 minute quadrangle map.
(3) 	‘River basin' means the area drained by a river and its tributaries or through a specified point on a river, as determined by the Commission.
(4)	‘Surface water' means any water located on the land surface which is not derived by pumping from groundwater.
(5)	‘Transfer' means the withdrawal, diversion, or pumping of surface water from one river basin and the use or discharge of all or any part of the water in a basin different from the origin.
"§ 143-215.22B. Permit required for water transfers; prohibited water transfers.
(a)	Except as provided in G.S. 143-215.22G, no person may transfer 1,000,000 gallons or more of water a day on any day from the basin of one river to another unless the person shall first obtain a permit from the Commission.
(b)	No permit may be granted for a water transfer that violates State water classifications or water quality standards or that adversely affects the public health and welfare.  
"§ 143-215.22C. Permit application.
(a)	An application for a water transfer permit shall be in writing and shall include:
(1)	Information regarding the existing uses of water by the applicant, including the following:
a.	A listing of each use or purchase greater than 100,000 gallons per day, on any day;
b.	The amount or percent of consumption for each use or purchase listed under (a)(1)a.;
c.	A listing of conservation programs or practices currently used for each use or purchase listed under (a)(1)a.;
d.	The peak capacity of each major component used in the present transfer facility for each use or purchase listed under (a)(1)a.
(2)	Information regarding any proposed transfer of water, including the following:
a.	A listing of the projected uses or purchases greater than 100,000 gallons per day, on any day;
b.	The estimated amount or percent of consumption for each use or purchase listed under (a)(2)a.;
c.	A listing of conservation programs or practices proposed for each use or purchase listed under (a)(2)a.;
d.	Engineering and economic justification for the capacity of each major component of the proposed transfer facility; and
e.	An engineering and economic assessment of the feasibility of using alternate water sources.
(3)	The location of all collection, withdrawal, and transportation facilities; and
(4)	Any other information deemed necessary by the Commission for review of the proposed water transfer.
(b)	An application for a water transfer permit shall be filed with the Commission at least 180 days in advance of the date on which it is desired to begin the transfer.  The Commission may conduct any inquiry or investigation that it considers necessary before acting on an application and may require an applicant to submit plans, specifications, and other information the Commission considers necessary to evaluate the application.
"§ 143-215.22D.  Application notice and comment.
(a)	Within 30 working days following the submission of a completed application, the Commission shall:
(1)	Publish notice of the application in the North Carolina Register;
(2)	Provide notice of the application by registered or certified mail, return receipt requested to each of the following within the proposed losing river basin:
a. 	A person holding a water transfer permit issued under this Part;
b.	A person holding a discharge permit issued under G.S. 143-215.1;
c.	A person holding a National Pollutant Discharge Elimination System permit issued under the Federal Water Pollution Control Act, as amended;
d.	A person who has registered a water transfer as provided by this Part;
e.	The board of county commissioners of each county that is located entirely or partially within the losing river basin and the governing body of any municipality that takes water from the losing river basin.
(b)	Any notice that an application for a water transfer has been received shall include a conspicuous statement in bold type that the river level in the proposed losing river basin will be decreased if the requested water transfer permit is granted.  The notice shall also include a nontechnical description of the applicant's request.  The notice shall further indicate the procedure to be followed by anyone wishing to submit comments on the proposed water transfer and shall direct local governments that objections from a local government must be filed with the Commission within 30 days of the receipt of the notice by the local government.
(c)	At least one public hearing for each application for a water transfer permit shall be conducted by the Commission at a location in the losing river basin below the point of transfer.  If an objection to the application for the water transfer permit is filed by a local government pursuant to this section, the Commission shall conduct at least two public hearings at a location in the losing river basin below the point of transfer.
At least 30 days' notice of the public hearing shall be given to all persons to whom notice of the application was sent and to any other person requesting notice.  The Commission shall also publish notice of the public hearing once a week for four consecutive weeks prior to the date of the public hearing in a newspaper of general circulation in each river basin area to be affected and in a newspaper of general circulation that originates in the losing river basin.
"§ 143-215.22E.  Permit application review.
(a)	The Commission shall insure the protection of the present and permitted assimilative needs of the losing river basin.  For each application, the Commission shall use data from stream modeling and instream sampling to determine whether the proposed water transfer is prohibited under G.S. 143-215.22B(b) and shall state its findings of fact and determination in writing.
(b)	In reviewing an application, the Commission shall consider information developed through studies, analyses, or inquiries undertaken by the Commission and information and comments submitted to the Commission by the applicant, public agencies, affected persons, and the public.
(c)	In determining whether a transfer may be permitted the Commission shall specifically consider each of the following items and state in writing its findings of fact with regard to each item.  No permit may be granted for a water transfer unless the Commission concludes by a preponderance of the evidence based upon the preceding findings of fact that the benefits of the proposed project outweigh the potential detriments of the project and that any such detriment has been mitigated as much as possible.  The criteria to be used by the Commission in evaluating an application are as follows:
(1)	Protect present and projected stream uses of the losing river basin generally and of the losing river specifically including, but not limited to, present agricultural, municipal, industrial and instream uses, and assimilative needs.
(2)	Protect water quality of the losing river basin.
(3)	Protect reasonably foreseeable future water needs of the losing river basin.
(4)	Protect the reasonably foreseeable future water needs of the applicant for the water to be transferred, including methods of water use, conservation, and efficiency of use.
(5)	Find a beneficial impact on the State and its local subdivisions of any proposed transfer, and the capability of the applicant to implement effectively its responsibilities under the requested permit.
(6)	Find that the nature of the permittee's use of the water is reasonable and beneficial in light of the probable detriment of the proposed water transfer.
(7)	Find that the proposed project shall promote and increase the storage and conservation of water.
(8)	Find that the feasibility of alternative sources of supply and their comparative costs are less preferable than the proposed water transfer.
(9)	Consider the impact on interstate water use.
(10)	Find that the requirements of other state or federal agencies with authority relating to water resources are not violated by the proposed transfer.
(11)	Protect the  availability of water in the losing river basin to respond to emergencies, including drought.
(12)	Consider whether the project shall have any beneficial or detrimental impact on navigation, hydropower generation, fish and wildlife habitat, aesthetics, or recreation.
(13)	Consider such other facts and circumstances as are reasonably necessary to carry out the purposes of this part.
"§ 143-215.22F.  Commission's power as to permits; permit action; emergency permits.
(a)	The Commission may grant, deny, or issue with conditions a water transfer permit.  The Commission may attach to a permit any conditions necessary to achieve the purposes of this Part, including the following:
(1)	The amount of water approved for transfer may be varied seasonally;
(2)	The transfer of water shall be required to cease or decrease when the instantaneous streamflow of the river basin of origin is equal to or less than a specified amount determined by permit application review conducted pursuant to G.S. 143-215.22F;
(3)	Special provisions may be included to promote an adequate water supply for the State or to mitigate any future adverse conditions resulting from the transfer;
(4)	The installation, maintenance and use of streamflow monitoring equipment may be required;
(5)	The establishment and reporting of transfer activities by the permittee may be required.
(b)	In order to protect the water uses of the losing river basin, the Commission, in determining the amount of water to be approved, may conduct or have conducted instream sampling and stream modeling to predict the volumes of water which may be transferred.
Transferable amounts may vary to accommodate seasonal water conditions in the losing river basin.  No transfer of water may be permitted at any time which shall cause the remaining flow in the losing river basin to be less than the statistical low flow that occurs for seven consecutive days, once every 10 years as established prior to the water transfer.
(c)	The permit shall specify the location of all collection, withdrawal, transmission, and discharge facilities to be used or constructed to effect the water transfer and shall specify the amount which can be withdrawn.  The permit shall require that the water transfer shall cease or decrease when the actual flow of the losing basin is less than a specified minimum required to protect against adverse effects to the basin.  The permit shall further require that the permittee comply with other requirements as may be advisable to promote an adequate water supply for the State and to mitigate any adverse conditions or effects which the Commission finds exist but are not sufficient to require denial of the permit.
(d)	Upon the issuance by the Governor of a declaration or proclamation of an emergency relating to water resources, the Chairman of the Commission may waive the usual permitting requirements and grant a temporary emergency water transfer permit.  The emergency water transfer permit shall be limited to meet the needs created by the emergency and shall be issued for a period no longer than 140 days or the duration of the Governor's declaration or proclamation, or public health emergency, whichever period is shorter.
"§ 143-215.22G.  Registration of all water transfers; pre-existing water transfers.
(a)	Any water transfer from one river basin to another for which a permit is not required under this Part shall be registered with the Commission.
(b)	Water transfers designated in Section 2 of Chapter 954 of the 1989 Session Laws may continue, even though not permitted under this Part subject to the following conditions:
(1)	The transfer is registered with the Commission within six months of the effective date of this Part.
(2)	Any increase in water transferred over the amount authorized in subdivision (1) of this section must be reviewed and permitted in accordance with G.S. 143-215.22B.
(c)	A person registering a water transfer under this section shall provide the Commission with the following information:
(1) 	The amount of water used;
(2) 	Identification of the point of withdrawal of the water to be transferred, the point where the actual transfer of water occurs, and the point of discharge for the water transfer;
(3)	A description of how the water is used.
"§ 143-215.22H.  Civil penalties; injunctions.
(a)	A  civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Commission against any person who:
(1)	Is required but fails to apply for or to secure a permit required by G.S. 143-215.22B or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit.
(2)	Violates a rule of the Commission implementing this Part.
(b)	If any action or failure to act for which a penalty may be assessed under this subsection is continuous, the Commission may assess a penalty not to exceed ten thousand dollars ($10,000) per day for so long as the violation continues, unless otherwise stipulated.
(c)	In determining the amount of the penalty the Commission shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage.
(d)	The Commission may assess the penalties provided for in this section. Any person assessed shall be notified of the assessment by registered or certified mail, and the notice shall specify the reasons for the assessment. If the person assessed fails to pay the amount of the assessment to the Department within 30 days after receipt of notice, or such longer period, not to exceed 180 days, as the Commission may specify, the Commission may institute a civil action in the superior court of the county in which the violation occurred or, in the discretion of the Commission, in the superior court of the county in which the person assessed resides or has his or its principal place of business, to recover the amount of the assessment.
(e)	Upon violation of any of the provisions of the Part, or the rules of the Commission, the Secretary may institute a civil action in the superior court in the name of the State for injunctive relief.  Neither the institution of the actions nor any of the proceedings relating to them shall relieve any party to the proceedings from the penalty prescribed by the Part for any violation of the provisions of the Part.
"§ 143-215.22I.  Criminal penalties.
(a)	Any person violating any provision of this Part is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) for each violation.  In addition, if any person is adjudged to have committed a violation of this Part willfully, the court may determine that each day during which the violation continued constitutes a separate offense.
"§ 143-215.22J.  Adoption of rules.
(a)	The Commission may adopt rules to carry out the intent of this Part.
"§ 143-215.22K.  Actions for loss of water rights.
Any riparian landowner or person legally exercising rights to use water, suffering material injury for the loss of water rights as a consequence of a water transfer permitted under this Part may maintain an action for relief against the water transferor in (i)	the county where the land of the riparian owner lies, or (ii) in the county in which the water transfer originates to recover all provable damages for loss of riparian rights including increases in operating costs, lost production, or other damages directly caused him by the water transfer.   Nothing in this Part changes or modifies existing common or statutory law with respect to the relative rights of riparian owners or others concerning the use of or disposal of water in the streams of North Carolina. Failure to file an objection as provided under Chapter 150B to the issuance of a permit to transfer water shall not be deemed a failure to exhaust administrative remedies and shall not affect the right to bring a civil action concerning riparian rights or the legal right to use water. The burden of proof is on the person alleging damages."
Sec. 2.  G.S. 153A-285 reads as rewritten:
"§ 153A-285. Prerequisites to acquisition of water, water rights, etc.
The word ‘authority' as used in G.S. 162A-7(b)	through (f) includes counties and cities acting jointly or through joint agencies to provide water services or sewer services or both. No county or city acting jointly and no joint agency may institute any proceeding in the nature of eminent domain to acquire water, water rights, or lands having water rights attached thereto until the acquisition is authorized by a certificate from the Environmental Management Commission pursuant to G.S. 162A-7.  Any proceeding to secure a certificate from the Environmental Management Commission shall be governed by the provisions of G.S. 162A-7(b) through 162A-7(f)."
Sec. 3.  G.S. 153A-287 is repealed.
Sec. 4.  This act becomes effective July 1, 1991.