GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 518

Short Title:  Water Supply Watershed Act Improvements.   	(Public)

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Sponsors: Senators Kincaid and Davis.

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Referred to:  Agriculture/Environment/Natural Resources

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March 29, 1995

A BILL TO BE ENTITLED
AN ACT TO AMEND THE LAWS OF NORTH CAROLINA TO IMPROVE THE ADMINISTRATION OF THE WATER SUPPLY WATERSHED PROTECTION ACT.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-214.5 reads as rewritten:
"§ 143-214.5.  Water supply watershed protection.
(a)	Policy Statement. – This section provides for a cooperative program of water supply watershed management and protection to be administered by local governments consistent with minimum statewide management guidelines established by the Commission. If a local government fails to adopt a water supply watershed protection program or does not adequately carry out its responsibility to enforce the minimum water supply watershed management requirements of its approved program, the Commission shall administer and enforce the minimum statewide guidelines.  The reduction of agricultural nonpoint source discharges shall be accomplished primarily through the Agriculture Cost Share Program for Nonpoint Source Pollution Control.
(b)	Development and Adoption of Water Supply Watershed Classifications and Management Requirements. – The Commission shall adopt rules for the classification of water supply watersheds and that establish minimum statewide water supply watershed protection guidelines applicable to each classification for use by local governments to protect surface water supplies by (i) controlling development density, (ii) providing for performance-based alternatives to development density controls that are based on sound engineering principles, (iii) a combination of both (i) and (ii), or (iv) such other means as the local government deems necessary.  Nothing in the State's guidelines shall preclude local governments from (i) averaging development densities over the entire jurisdiction or watershed, whichever is less, (ii) allowing stormwater control systems alternative to wet detention basins, (iii) allowing accessory structures in buffer  areas, (iv) specifying buffer widths less stringent than the State's guidelines, or (v) including publicly owned lands or other undevelopable lands within the watershed in calculating the allowable development density for developable land within the watershed.  Property more than two miles from the water supply waters to which the property drains is not subject to the provisions of this section.  Nothing in this section shall be construed to allow the State to limit the percent built-upon area within water supply watersheds or the development density of individual projects. The Commission may designate water supply watersheds or portions thereof as critical water supply watersheds and recommend management requirements that are more stringent than the minimum statewide water supply watershed management guidelines.  The Commission may adopt rules that require that any permit issued by a local government for a development or construction activity conducted by that local government within a designated water supply watershed be in compliance with the watershed requirements adopted by that local government.  Local governments may grant variances from the local watershed protection requirements adopted pursuant to the minimum statewide water supply watershed management  guidelines on a case-by-case basis in order to effect desirable social or economic goals or if necessary to avoid adverse social or economic impacts.  Except as provided by G.S. 153A-347 and G.S. 160A-392, construction activities that are conducted by State agencies must meet the State's minimum statewide watershed protection guidelines or any applicable local government requirements, whichever are more stringent, and must be approved by the Commission.
(c)	Classification of Water Supply Watersheds. – The Commission shall assign to each water supply watershed in the State the appropriate classification consistent with the recommendation of local governments having jurisdiction in the watershed.  Where multiple local governments having jurisdiction in the watershed cannot agree on the appropriate water supply classification, the Commission shall assign to the watershed the classification with the least stringent watershed management guidelines.  The Commission may, in keeping with the recommendation of local governments having jurisdiction in the water supply watershed, reclassify water supply watersheds as necessary to protect future water supplies or improve protection at existing water supplies. A local government shall not be required to submit a revised water supply watershed protection program to the Commission earlier than 270 days after it receives notice of a reclassification from the Commission.
(d)	Mandatory Local Programs. – The Department shall assist local governments to develop water supply watershed protection programs that comply with this section. Local government compliance programs shall include an implementing local ordinance and shall provide for maintenance, inspection, and enforcement procedures.  As part of its assistance to local governments, the Commission shall approve and make available a model local water supply watershed management and protection ordinance. The model management and protection ordinance adopted by the Commission shall, at a minimum, include as options (i) controlling development density, (ii) providing for performance-based alternatives to development density controls that are based on sound engineering principles, and (iii) a combination of both (i) and (ii).  Local governments shall administer and enforce the minimum management requirements adopted by that local government.  Every local government that has within its jurisdiction all or a portion of a water supply watershed shall submit a local water supply watershed management and protection program to the Commission for approval.  Local governments may adopt such programs pursuant to their general police power, power to regulate the subdivision of land, zoning power, or any combination of such powers.  In adopting a local ordinance that imposes water supply watershed management requirements that are more stringent than the guidelines adopted by the Commission, a county must comply with the notice provisions of G.S.153A-343 and a municipality must comply with the notice provisions of G.S. 160A-384. Local governments may create or designate agencies to administer and enforce such programs. 
(d1)	A local ordinance adopted to implement the minimum statewide water supply watershed management guidelines applicable to agriculture and silviculture activities shall be no more restrictive than those adopted by the Commission.  In adopting minimum statewide water supply watershed management guidelines applicable to agriculture activities, the Commission shall consider the policy regarding agricultural nonpoint source discharges set out in subsection (a) of this section.  The Commission may by rule designate another State agency to administer the minimum statewide water supply watershed management guidelines applicable to agriculture and silviculture activities.  If the Commission designates another State agency to administer the minimum statewide water supply watershed management guidelines applicable to agriculture and silviculture activities, management requirements adopted by local governments shall not apply to such activities.
(e)	Assumption of Local Programs. – The Commission shall assume responsibility for water supply watershed protection, within all or the affected portion of a water supply watershed, if a local government fails to adopt a program under this section or whenever a local government fails to adequately administer and enforce the provisions of its program. The Commission shall not assume responsibility for an approved local water supply watershed protection program until it or its designee notifies the local government in writing by certified mail, return receipt requested, of local program deficiencies, recommendations for changes and improvements in the local program, and the deadline for compliance. The Commission shall allow a local government a minimum of 120 days to bring its program into compliance. The Commission shall order assumption of an approved local program if it finds that the local government has made no substantial progress toward compliance. The Commission may make such finding at any time between 120 days and 365 days after receipt of notice under this subsection by the local government, with no further notice. Proceedings to review such orders by the Commission shall be conducted by the superior court pursuant to Article 4 of Chapter 150B of the General Statutes based on the agency record submitted to the Commission by the Secretary.
(f)	State Enforcement Authority. – The Commission may take any appropriate preventive or remedial enforcement action authorized by this Part against any person who violates any  applicable water supply watershed management requirement.
(g)	Civil Penalties. –In any area of the State that is not covered by an approved local water supply watershed protection program, any person who violates or fails to act in accordance with any minimum statewide water supply watershed management requirement or more stringent management requirement adopted by the Commission for a critical water supply watershed established pursuant to this section shall be subject to a civil penalty as specified in G.S. 143-215.6A(a)(7).
(h)	Planning Grants to Local Governments. – The Secretary may make annual grants to local governments for the purpose of assisting in the development of local water supply watershed protection programs. The Secretary shall develop and administer generally applicable criteria under which local governments may qualify for such assistance. Such criteria shall give priority to local governments that are not then administering zoning ordinances in affected water supply watershed areas.
(i)	Every State agency shall act in a manner consistent with the policies and purposes of this section, and shall comply with the minimum statewide water supply watershed management guidelines adopted by the Commission and with all water supply watershed management and protection ordinances adopted by local governments."
Sec. 2.  G.S. 143-215.6A(a) reads as rewritten:
"§ 143-215.6A.  Enforcement procedures: civil penalties.
(a)	A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Secretary against any person who:
(1)	Violates any classification, standard, limitation, or management practice established pursuant to G.S. 143-214.1, 143-214.2, or 143-215.
(2)	Is required but fails to apply for or to secure a permit required by G.S. 143-215.1, or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit or any other permit or certification issued pursuant to authority conferred by this Part, including pretreatment permits issued by local governments and laboratory certifications.
(3)	Violates or fails to act in accordance with the terms, conditions, or requirements of any special order or other appropriate document issued pursuant to G.S. 143-215.2.
(4)	Fails to file, submit, or make available, as the case may be, any documents, data, or reports required by this Article or G.S. 143-355(k) relating to water use information.
(5)	Refuses access to the Commission or its duly designated representative to any premises for the purpose of conducting a lawful inspection provided for in this Article.
(6)	Violates a rule of the Commission implementing this Part, Part 2A of this Article, or G.S. 143-355(k).
(7)	Violates or fails to act in accordance with the statewide minimum water supply watershed management guidelines adopted pursuant to G.S. 143-214.5, when enforced by the Commission.
(7a)	Violates or fails to act in accordance with the water supply watershed management requirements adopted and enforced by a local government.
(8)	Violates the offenses set out in G.S. 143-215.6B.
(9)	Is required, but fails, to apply for or to secure a certificate required by G.S. 143-215.22I, or who violates or fails to act in accordance with the terms, conditions, or requirements of the certificate."
Sec. 3.  G.S. 143-214.6 and G.S. 143-215.6A(e) are repealed.
Sec. 4.  This act is effective upon ratification.