GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	2 

SENATE BILL 151
Environment and Natural Resources Committee Substitute Adopted 5/14/91

Short Title:  Protect Natural/Scenic Rivers.	(Public)
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Sponsors:
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Referred to:  
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February 20, 1991

A BILL TO BE ENTITLED
AN ACT TO STRENGTHEN THE NATURAL AND SCENIC RIVERS SYSTEM AND TO REQUIRE ZONING AND OTHER LAND-USE CONTROLS TO PROTECT DESIGNATED RIVERS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 113A-32 reads as rewritten:
"§ 113A-32. Declaration of purpose.
The purpose of this Article is to implement the policy as set out in G.S. 113A-31 by instituting a North Carolina Natural and Scenic Rivers System, and by prescribing methods for inclusion of components to the System from time to time."
Sec. 2.  G.S. 113A-33 reads as rewritten:
"§ 113A-33. Definitions.
As used in this Article, unless the context requires otherwise:
(1)	‘Component' means any river or segment approved by the General Assembly for inclusion in the System.
(2)	‘Department' means the Department of Environment, Health, and Natural Resources.
(3)	‘Free-flowing,' as applied to any river or segment, means existing or flowing in natural condition without substantial impoundment, diversion, straightening, rip-rapping, or other modification of the waterway.  The existence of low dams, diversion works, and other minor structures at the time any river is proposed for inclusion in the System shall not automatically bar its consideration for such inclusion, provided that this shall not be construed to authorize, intend, or encourage future construction of such structures within components of the System.
(4)	‘River' means a typically flowing body of water, including rivers, streams, creeks, runs, kills, rills, estuaries, and small lakes.
(5)	‘Road' means public or private highway, hard-surface road, dirt road, or railroad.
(6)	‘Scenic easement' means a perpetual easement in land which (i) is held for the benefit of the people of North Carolina, (ii) is specifically enforceable by its holder or beneficiary, and (iii) limits or obligates the holder of the servient estate, his heirs, and assigns with respect to their use and management of the land and activities conducted thereon.  The object of such limitations and obligations is the maintenance or enhancement of the natural beauty of the land in question or of the areas affected by it.
(7)	‘Secretary' means the Secretary of Environment, Health, and Natural Resources.
(8)	‘Segment' means any portion or part of a river having specified upstream and downstream boundaries.
(9)	‘System' means the North Carolina Natural and Scenic Rivers System."
Sec. 3.  G.S. 113A-34 reads as rewritten:
"§ 113A-34. Types of scenic rivers.
The following types of rivers and segments are eligible for inclusion in the North Carolina Natural and Scenic Rivers System:
(1)	Class I. Natural River Areas. Those free-flowing rivers or segments and adjacent lands existing in a natural condition.  Those rivers or segments that are free of man-made impoundments and generally inaccessible except by trail, with the lands within the boundaries essentially primitive and the waters essentially unpolluted.  Natural River Areas represent vestiges of primitive America.
(2)	Class II. Scenic River Areas. Those rivers or segments that are largely free of impoundments, with the lands within the boundaries largely primitive and largely undeveloped, but accessible in places by roads.  Scenic River Areas provide beautiful views and aesthetically pleasing vistas that may include forested landscapes and agricultural or pastoral areas.
(3)	Class III.  Recreational River Areas.  Those rivers or segments that offer outstanding recreation and scenic values and that are largely free of impoundments.  They may have some development along their shorelines and have more extensive public access than Natural River Areas or Scenic River Areas.  Recreational River Areas may also link two or more Natural River Areas or Scenic River Areas to provide a contiguous designated component.  "
Sec. 4.  G.S. 113A-35 reads as rewritten:
"§ 113A-35. Criteria for System.
For the inclusion of any river or segment in the North Carolina Natural and Scenic River System, the following criteria must be present:
(1) 	River or segment length must be no less than one mile.
	(3) 	Water quality shall not be less than that required for Class ‘C' waters as established by the North Carolina Environmental Management Commission.
(4) 	Water flow shall be sufficient to assure a continuous flow and shall not be subjected to withdrawal or regulation to the extent of substantially altering the natural ecology of the stream.
(5) 	Public access shall be limited as provided in G.S. 113A-34.  Public access to a component may be permitted to the extent deemed appropriate by the Secretary and consistent with any property interest acquired by the Department and the policies and purpose of this Article."
Sec. 5.  G.S. 113A-35.1 reads as rewritten:
"§ 113A-35.1. Components of System; management plan; acquisition of land and easements; inclusion in National System.
(a)	That segment of the south fork of the New River extending from its confluence with Dog Creek in Ashe County downstream through Ashe and Alleghany Counties to its confluence with the north fork of the New River and the main fork of the New River in Ashe and Alleghany Counties downstream to the Virginia State line is hereby designated a Scenic River Area within the North Carolina Natural and Scenic Rivers System.
(b)	The Department shall prepare and implement a management plan for the New River Scenic River Area.  This management plan shall recognize and provide for the protection of the existing undeveloped scenic and pastoral features of the river.  Furthermore, it shall specifically provide for continued use of the lands adjacent to the river for normal agricultural activities, including, but not limited to, cultivation of crops, raising of cattle, growing of trees and other practices necessary to such agricultural pursuits.
(c)	For purposes of implementing this section and the management plan, the Department is authorized to acquire lands or interests in lands not to exceed 2,200 acres, to acquire such lands in fee simple or to acquire such interests in lands as easements, to provide for protection of scenic values as described in G.S. 113A-38, and to provide for public access.  Easements obtained for the purpose of implementing this section and the management plan shall not abridge the water rights being exercised on 26 May 1975.
(d)	Should the Governor seek inclusion of the New River Scenic River Area in the National Wild and Scenic Rivers System pursuant to the Wild and Scenic Rivers Act, Pub. L. No. 90-542, 82 Stat. 906, 16 U.S.C. § 1271 et seq., such inclusion shall be at no cost to the United States as required by the Wild and Scenic Rivers Act, and therefore shall be managed pursuant to this Article and the management plan developed pursuant thereto.
	(e) The Department shall prepare an annual status report on the progress made in implementing the management plan required pursuant to subsection (b) of this section and the progress in implementing the management plan submitted by the Department in support of the request to the Secretary of the Interior for the inclusion of the New River Scenic River Area in the National Wild and Scenic Rivers System.  The status report shall evaluate the extent to which current implementation of the management plans has in fact maintained the free-flowing state of the New River Scenic River Area and protected the scenic conditions of the New River Scenic River Area and the adjacent lands consistent with the policies and purpose of this Article.  If implementation of either management plan is incomplete at the time the report is filed, the Secretary shall submit a schedule for implementing the remainder of the plan.  The status report shall be filed with the General Assembly no later than 15 January of each year beginning 15 January 1990."
Sec. 6.  G.S. 113A-35.2 reads as rewritten:
"§ 113A-35.2. Additional components of the System.
(a)	That segment of the Linville River beginning at the State Highway 183 bridge over the Linville River and extending approximately 13 miles downstream to the boundary between the United States Forest Service lands and lands of Duke Power Company (latitude 35° 50' 20" ) is hereby designated a Natural River Area within the North Carolina Natural and Scenic River System.
(b)	That segment of the Horsepasture River in Transylvania County extending downstream from Bohaynee Road (N.C. 281) to Lake Jocassee is hereby designated a Natural River Area within the North Carolina Natural and Scenic Rivers System.
(c)	That segment of the Lumber River extending from county road 1412 in Scotland County downstream to the North Carolina-South Carolina state line, a distance of approximately 102 river miles, is hereby designated a component of the North Carolina Natural and Scenic Rivers System as follows:  the segment from county road 1412 in Scotland County downstream to the junction of the Lumber River and Back Swamp is designated a Scenic River Area; the segment from the junction of the Lumber River and Back Swamp downstream to the junction of the Lumber River and Jacob Branch and the river within the Fair Bluff town limits is designated a Recreational River Area; and the segment from the junction of the Lumber River and Jacob Branch downstream to the North Carolina-South Carolina state line, excepting the Fair Bluff town is designated a Natural River Area."
Sec. 7.  G.S. 113A-36 reads as rewritten:
"§ 113A-36.  Administrative agency; federal grants; additions to the System.
(a)	The Department shall administer and control the North Carolina Natural and Scenic Rivers System.
(b)	The Department may accept grants from the United States or from any other source for use in planning, development, acquisition of land or an interest in land, and administering the System.
(c)	The Secretary shall periodically assess the condition of the rivers within the State and shall determine whether any river or segment should be designated a component of the System.  The Secretary may propose that a river or segment be designated a component of the System by submitting to the Governor and to the General Assembly a proposal which includes the following:
(1)	A description of the river or segment;
(2)	The proposed classification of the river or segment under G.S. 113A-34;
(3)	An analysis of the manner and extent to which designation of the river or segment as a component of the System would further the policies and purpose of this Article;
(4)	An analysis of the feasibility of including the river or segment in the System;
(5)	An analysis of the manner and extent to which designation of the river or segment as a component of the System would compliment and be consistent with the State Parks System Plan prepared and adopted pursuant to G.S. 113-44.11;
(6)	An estimate of the cost of planning, acquisition of land and interests in land, capital improvements, maintenance, operations, management, and administration;
(7)	Local government action necessary to protect the river or segment; and
(8)	Any other relevant information.
(d)	Before submitting any proposal to the Governor and the General Assembly under this section, the Secretary shall hold a public hearing in each county through which or along the border of which any part of the river or segment that is proposed for designation as a component flows.  Notice of such public hearing shall be given by publishing a notice once each week for two consecutive weeks in a newspaper having general circulation in the county where the hearing is to be held, the second notice appearing not less than 10 days before the hearing.  Any person attending the hearing shall be given an opportunity to be heard.  No public hearing shall be required with respect to a river or segment bounded solely by the property of one owner, who consents in writing to the addition of such river or segment to the System.
(e)	Before proposing to the Governor and the General Assembly that a river or segment be included in the System, the Secretary shall notify in writing the owner, lessee, or tenant of any lands adjoining the river or segment of the intention to make such proposal.  In the event the Secretary, after due diligence, is unable to determine the owner or lessee of any such land, the Secretary shall publish a notice for four successive weeks in a newspaper having general circulation in the county where the land is situated of the intention to make a proposal to the Governor and to the General Assembly that the river or segment be included in the System.
	 (f) Upon receipt of a request in the form of a resolution from the commissioners of the county or counties in which a river or segment is located and upon studying the river or segment and determining that it meets the criteria set forth in G.S. 113A-35, the Secretary may designate the segment a potential component of the System.  The designation as a potential component shall be transmitted to the Governor and all appropriate State agencies.  Any river or segment so designated is subject to the provisions of this Article and rules adopted pursuant to this Article applicable to designated components, except for acquisition by condemnation or by any other means.  A designation of a river or segment as a potential component shall be temporary and shall expire after two years.  
	(g) Within one year after designating a river or segment as a potential component, the Secretary shall either remove the designation as a potential component or shall propose that the designation be made permanent pursuant to G.S. 113A-36.  The General Assembly shall determine whether to designate the river or segment as a component of the System.  Notwithstanding any rule or resolution to the contrary, proposed legislation to designate a river or segment as a component of the System may be introduced and considered at any session of the General Assembly. If the General Assembly fails to take affirmative action on the designation, the designation as a potential component shall expire.
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Sec. 8.  G.S. 113A-37 reads as rewritten:
"§ 113A-37. Raising the status of an area.
Whenever in the judgment of the Secretary a component has been sufficiently restored and enhanced in its natural, scenic, and recreational qualities so that a higher classification under G.S. 113A-34 is more appropriate, such component may be reclassified by the Secretary to a higher classification and thereafter administered accordingly."
Sec. 9.  G.S. 113A-38 reads as rewritten:
"§ 113A-38. Land acquisition.
(a)	Upon the recommendation of the Secretary, the Department of Administration is authorized to acquire lands necessary and appropriate to implement the policies and purpose of this Article.  Lands may be acquired in fee simple or in any lesser interest.  Wherever possible and cost-effective, the Department of Administration shall acquire a scenic easement rather than fee simple title.  Acquisition of land or interest therein may be by donation, purchase with donated or appropriated funds, exchange, or otherwise.
(b)	In acquiring real property or a property interest therein as set out in this section, the Department of Administration shall have and may exercise the power of eminent domain in accordance with Article 3 of Chapter 40A of the General Statutes."
Sec. 10.  G.S. 113A-39 reads as rewritten:
"§ 113A-39. Claim and allowance of charitable deduction for contribution or gift of easement.
The contribution or donation of a scenic easement, right-of-way, any other easement, land, or any interest in land to the State of North Carolina, as provided in this Article, shall be deemed a contribution to the State of North Carolina within the provisions of G.S. 105-130.9 and 105-147(16).  The value of the contribution or donation shall be the fair market value of the easement or other interest in land when the contribution or donation is made."
Sec. 11.  G.S. 113A-40 reads as rewritten:
"§ 113A-40. Component as part of State park, wildlife refuge, etc.
Any component of the System that is or becomes a part of any State park, wildlife refuge, or state-owned area shall be subject to the provisions of this Article, rules adopted pursuant to this Article, all other applicable provisions of law and any applicable local ordinances and, in the case of a conflict between applicable provisions, the more restrictive provisions shall apply."
Sec. 12.  G.S. 113A-41 reads as rewritten:
"§ 113A-41. Component as part of National Wild and Scenic Rivers System.
Nothing in this Article shall preclude a river or segment from becoming part of the National Wild and Scenic Rivers System.  The Secretary shall encourage and assist any federal studies for the inclusion of North Carolina rivers in the national system.  The Secretary may enter into cooperative agreements for joint federal-state administration of a North Carolina river or segment provided that such agreements relating to water and land use are not less restrictive than the requirements of this Article."
Sec. 13.  G.S. 113A-43 reads as rewritten:
"§ 113A-43. Authorization of advances.
The Department of Administration is hereby authorized to advance from land-purchase appropriations necessary amounts for the purchase of land in those cases where reimbursement will be made by the National Park Service or the United States Department of the Interior."
Sec. 14.  G.S. 113A-44 reads as rewritten:
"§ 113A-44. Restrictions on projects in components.
(a)	Every State agency shall act in a manner consistent with the policies and purpose of this Article and shall take those steps necessary to protect and enhance the natural, scenic, and recreational qualities of components of the System.
(b)	The North Carolina Utilities Commission may not permit the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or any other project on or directly affecting any component or potential component.  No department or agency of the State may assist by loan, grant, license, permit, or otherwise in the construction of any project that would have a direct and adverse effect on any component or potential component.  This section shall not, however, preclude licensing of or assistance to a development below or above a component or potential component.  No department or agency of the State may recommend authorization of any project that would have a direct and adverse effect on any component or potential component, or request appropriations to begin construction of any such project, regardless of when authorized, without advising the Secretary in writing of its intention to do so at least 60 days in advance of taking such action.  A department or agency making such recommendation or request shall submit a written impact statement to the General Assembly to accompany the recommendation or request specifically describing how construction of the project would be in conflict with the policies and purpose of this Article and how it would affect the component or potential component."
Sec. 15.  Article 3 of Chapter 113A of the General Statutes is amended by adding a new section to read:
"§ 113A-45.  Land-use controls.
(a)	In addition to the acquisition of lands in fee simple or lesser interest as authorized by G.S. 113A-38, land along components may be protected by land-use controls that regulate the use and development of land along the river corridor.  The Department shall adopt land-use rules to establish minimum standards for use by units of local government in adopting ordinances to control the use of land along components.
(b)	For rivers or segments included in the System after 1 July 1991, each unit of local government with jurisdiction over land along rivers or segments has a two-year period after designation to certify to the Department that land-use controls in effect in its jurisdiction are at least as restrictive as the minimum standards established pursuant to subsection (a) of this section.  Land-use controls adopted pursuant to this section shall be designed to affect the minimum amount of land necessary to protect the river corridor and to allow compatible uses as determined by the Department.  Certification shall be accompanied by a copy of the ordinance and a zoning or other land-use control map.
(c)	A designation as a component shall continue in effect if land-use controls are adopted, as required by subsection (b) of this section, by a unit or units of local government having jurisdiction over land adjacent to either side of a river or segment designated as a component, or any part thereof that meets the minimum length criteria set out in G.S. 113A-35, and so long as such land-use controls remain in force.
(d)	Failure to meet the requirements of subsections (b) and (c) of this section shall result in the repeal of the designation of the river or segment, or such part of a river or segment for which such requirements are not met, as a component."
Sec. 16.  Article 3 of Chapter 113A of the General Statutes is amended by adding a new section to read:
"§ 113A-46.  Delegation of powers and duties by the Secretary; adoption of rules.
(a)	The Secretary may delegate any power or duty under this Article to appropriate officials of the Department.
(b)	The Department may adopt rules to implement this Article pursuant to Chapter 150B of the General Statutes."
Sec. 17. This act becomes effective 1 October 1991.