GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 1337*

Short Title:  Flood Hazard Prevention Act of 2000.	(Public)

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Sponsors: Senator Odom.

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Referred to:  Agriculture/Environment/Natural Resources.

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May 18, 2000

A BILL TO BE ENTITLED
AN ACT TO PREVENT INAPPROPRIATE DEVELOPMENT IN THE ONE HUNDRED-YEAR FLOODPLAIN AND TO REDUCE FLOOD HAZARDS, AS RECOMMENDED BY THE ENVIRONMENTAL REVIEW COMMISSION.
Whereas, the hurricanes and associated flooding experienced in Eastern North Carolina in 1999 caused over six billion dollars in damage; and
Whereas, some of the structural damage resulting from the floods could have been prevented by requiring development in the floodplain to be elevated above the 100-year floodplain; and 
Whereas, harm to the environment could have been minimized by prohibiting certain inappropriate uses in the floodplain; Now, therefore,
The General Assembly of North Carolina enacts:
Section 1. Part 6 of Article 21 of Chapter 143 of the General Statutes reads as rewritten:
"Part 6. Floodplain Regulation. 
"§ 143-215.51.  Preamble.
(a)	The purpose of this Part is to:
(1)	Minimize the extent of floods by preventing obstructions which inhibit water flow and increase flood height and damage.
(2)	Prevent and minimize loss of life, injuries, property damage, and other losses in flood hazard areas.
(3)	Promote the public health, safety, and welfare of citizens of North Carolina in flood hazard areas.
It is hereby declared that the channel and the adjoining 100-year floodplain of all the State's streams will be designated as a flood hazard area. Structures and other artificial obstructions may not be placed in the channel of a stream or in the adjoining floodplain, except in accordance with the provisions of this Part. 
"§ 143-215.52.  Definitions.
As used in this Part:
(1)	'Artificial obstruction' means any obstruction which is not a natural obstruction, including any which, while not a significant obstruction in itself, is capable of accumulating debris and thereby reducing the flood-carrying capacity of the stream.
(1a)	'Base flood' or '100-year flood' means the flood which has a one percent (1%) chance of being equalled or exceeded in any given year. The term 'Base flood' is used in the National Flood Insurance Program to indicate the minimum level of flooding to be addressed by a community in its floodplain management regulations.
(1b)	'Base floodplain' or '100-year floodplain' means that area subject to a one percent (1%) or greater chance of flooding in any given year, as shown on the most current floodplain maps prepared pursuant to the National Flood Insurance Program or approved by the Department.
(1c)	'Department' means the Department of Crime Control and Public Safety.
(1d)	'Flood hazard area' means the portion of the floodplain designated by a local government or by the Department, pursuant to this Part, as an area where development must be regulated to prevent damage from flooding.  The flood hazard area must include and may exceed the base floodplain.
(1e)	'Floodplain' means the lowland and relatively flat areas adjoining inland and coastal waters, including the base floodplain.
(2)	'Floodway' means that portion of the channel and floodplain of a stream designated to provide passage for the 100-year flood, without increasing the elevation of that flood at any point by more than one foot.
(3)	'Local government' means any county or municipal corporation.
(4)	'Natural obstruction' includes any rock, tree, gravel, or other natural matter that is an obstruction and has been located within the floodway by a nonhuman cause.
(5)	'Stream' means a watercourse that collects surface runoff from an area of one square mile or greater. 
"§ 143-215.53.   Floodplain development regulated.
Except as provided in G.S. 143-215.54 and G.S. 143-215.57, no person shall place any artificial obstruction in the floodway of any stream or construct any structure in a flood hazard area after the flood hazard area has been delineated pursuant to G.S. 143-215.56. 
"§ 143-215.54.   Flood hazard area uses.
(a)	A local government may adopt ordinances to regulate uses in flood hazard areas and grant permits for the use of flood hazard areas that are consistent with the requirements of this Part.
(b)	The following uses may be made of flood hazard areas as a matter of right without a permit issued under this Part:
(1)	General farming, pasture, outdoor plant nurseries, horticulture, forestry, wildlife sanctuary, game farm, and other similar agricultural, wildlife and related uses;
(2)	Ground level loading areas, parking areas, rotary aircraft ports and other similar ground level area uses;
(3)	Lawns, gardens, play areas and other similar uses;
(4)	Golf courses, tennis courts, driving ranges, archery ranges,  picnic grounds, parks, hiking or horseback riding trails, open space and other similar private and public recreational uses.
(c)	The lowest habitable floor of a structure in the 100-year floodplain must be constructed at least two feet above the base flood elevation.
	(d) Salvage yards, chemical storage facilities, and other uses involving potentially large quantities of hazardous materials or solid waste disposal may not be located in the 100-year floodplain.
"§ 143-215.55. Acquisition of existing structures.
A local government may acquire, by purchase, exchange, or condemnation an existing structure located in a flood hazard area in the area regulated by the local government if the local government determines that the acquisition is necessary to prevent damage from flooding. The procedure in all condemnation proceedings pursuant to this section shall conform as nearly as possible to the procedure provided in Article 3 of Chapter 40A of the General Statutes.
"§ 143-215.56. Delineation of flood hazard areas; powers of Department; powers of local governments.
(a)	For the purpose of delineating a flood hazard area and evaluating the possibility of flood damages, a local government may:
(1)	Request technical assistance from the competent federal agencies, including the Army Corps of Engineers, the Soil Conservation Service, the Tennessee Valley Authority, and the U.S. Geological Survey, or successor agencies.
(2)	Utilize the reports and data supplied by federal and State agencies as the basis for the exercise by local ordinance or resolution of the powers and responsibilities conferred on responsible local governments by this Part.
(b)	The Department may provide advice and assistance to any local government having responsibilities under this Part. In exercising this function it shall specifically be authorized to furnish manuals, suggested standards, plans, and other technical data; to conduct training programs; and to give advice and assistance with respect to delineation of flood hazard areas and the development of appropriate ordinances; but it shall not be limited to such activities. The Department shall send a copy of every rule adopted to implement this Part to the governing body of each local government in the State.
(c)	A local government may delineate any flood hazard area subject to its regulation by showing it on a map or drawing, by a written description, or any combination thereof, to be designated appropriately and filed permanently with the clerk of superior court and with the register of deeds in the county where the land lies. A local government may also delineate a flood hazard area by reference to a map prepared pursuant to the National Flood Insurance Program. The Department may delineate a flood hazard area, in the same manner and subject to the same requirement, when the reach of a stream in which a flood hazard area is determined by the Department to be needed exceeds the jurisdiction of a single local government. Alterations in the lines delineated shall be indicated by appropriate entries upon or addition to such map or description. Such entries or additions shall be made by or under the direction of the clerk of superior court. Photographic, typed or other copies of such map or description, certified by the clerk of superior court, shall be admitted in evidence in all courts and shall have the same force and effect as would the original map or description. A local government or the Department may provide for the redrawing of any such map. A redrawn map shall supersede for all purposes the earlier map or maps which it is designated to replace upon the filing and approval thereof as designated and provided above.
(d)	If the Department determines that the flood hazard area of any stream or stream segment should be delineated and the use thereof controlled as provided in this Part, and the local governments within which the stream or segment lies have not delineated the flood hazard area or controlled uses therein, the Department shall advise the local governments of its intent to delineate the flood hazard area, and it shall be the responsibility of the local governments to control uses therein. At least 30 days prior to the effective date of the delineation by the Department of any flood hazard area, notice of the effective date and copies of the rule shall be delivered to every affected local government. Public notice of the delineation shall be given at least 30 days prior to the effective date by publication of a notice once a week for two successive weeks in a newspaper or newspapers having general circulation in the county or counties in which each affected local government lies and by posting a copy of the notice at the courthouse of each such county, along with a sketch map showing the stream or stream segment affected. The notice shall be adequate to apprise all interested persons of the nature of the rules, the effective date thereof, the stream or stream segment affected, and the manner in which more detailed information may be secured.
"§ 143-215.57.  Procedures in issuing permits.
(a)	A local government may establish application forms and require such maps, plans, and other information as necessary for the issuance of permits in a manner consonant with the objectives of this Part.  For this purpose they may take into account anticipated development in the foreseeable future which may be adversely affected by the obstruction, as well as existing development.  They shall consider the effects of a proposed artificial obstruction in a stream in creating danger to life and property  by:
(1)	Water which may be backed up or diverted by such obstruction.
(2)	The danger that the obstruction will be swept downstream to the injury of others.
(3)	The injury or damage at the site of the obstruction itself.
(a1)	Prior to issuing a permit for a structure in a floodplain, a local government shall ensure that the lowest habitable floor of the structure is elevated at least two feet above the 100-year floodplain.
	(a2) A local government shall not permit the establishment of a salvage operation, chemical storage facility, or other use involving potentially large quantities of hazardous materials or solid waste disposal within the 100-year floodplain.
(b)	In prescribing standards and requirements for the issuance of permits under this Part, and in issuing such permits, responsible local governments shall proceed as in the case of an ordinance for the better government of the county or municipality, as the case may be. A municipality may exercise the powers granted in this Part not only within its corporate boundaries but also within the area of its extraterritorial zoning jurisdiction. A county may exercise the powers granted in this Part at any place within the county outside the zoning jurisdiction of any municipalities in the county. The county may regulate territory within the zoning jurisdiction of any municipality  whose governing body, by resolution, agrees to such regulation; provided, however, that any such municipal governing body may, upon one year's written notice, withdraw its approval of the county regulations, and those regulations shall have no further effect within the municipality's jurisdiction.
(c)	The local governing body is hereby empowered to adopt such regulations as it may deem necessary concerning the form, time, and manner of submission of applications for permits under this Part. Such regulations may provide for the issuance of permits under this Part by the local governing body or by such agency as may be designated by said body, as prescribed by the governing body. Every final decision granting or denying a permit under this Part shall be subject to review by the superior court of the county, with the right of jury trial at the election of the party seeking review. The time and manner of election of a jury trial shall be governed by G.S. 1A-1, Rule 38(b) of the Rules of Civil Procedure. Pending the final disposition of any such appeal, no action shall be taken which would be unlawful in the absence of a permit issued under this Part. 
"§ 143-215.58.  Violations and penalties.
(a)	Any willful violation of this Part or of any ordinance adopted (or of the provisions of any permit issued) under the authority of this Part shall constitute a Class 1 misdemeanor.
	(a1) A local government may use all of the remedies available for the enforcement of zoning ordinances under Chapter 160A and Chapter 153 of the General Statutes to enforce an ordinance adopted pursuant to this Part.
(b)	Failure to remove any artificial obstruction or enlargement or replacement thereof, that violates this Part or any ordinance adopted (or the provision of any permit issued) under the authority of this Part, shall constitute a separate violation of this Part for each day that such failure continues after written notice from the county or municipal governing body.
(c)	In addition to or in lieu of other remedies, the county or municipal governing body may institute any appropriate action or proceeding to restrain or prevent any violation of this Part or of any ordinance adopted (or of the provisions of any permit issued) under the authority of this Part, or to require any person, firm or corporation which has committed any such violation to remove a violating obstruction or restore the conditions existing before the placement of the obstruction.
"§ 143-215.59.  Other approvals required.
(a)	The granting of a permit under the provisions of this Part shall in no way affect any other type of approval required by any other statute or ordinance of the State or any political subdivision of the State, or of the United States, but shall be construed as an added requirement.
(b)	No permit for the construction of any structure to be located within a flood hazard area shall be granted by a political subdivision unless the applicant has first obtained the permit required by this Part. 
"§ 143-215.60.  Liability for damages.
No action for damages sustained because of injury or property damage caused by a structure or obstruction for which a permit has been granted under this Part shall be brought against the State or any political subdivision of the State, or their employees or agents. 
"§ 143-215.61.  Floodplain management.
The provisions of this Part shall not preclude the imposition by responsible local governments of land use controls and other regulations in the interest of floodplain management for the floodplain or the floodway."
Section 2. Part 6 of Article 21 of Chapter 143 is amended by adding a new section to read:
"§ 143-215.62. Failure to implement; approval of variances.
(a)	A local government that has not adopted and implemented an ordinance consistent with the requirements of this Part shall not be eligible for State disaster assistance until the local government adopts and implements an ordinance consistent with the requirements of this Part.
	(b) Issuance by a local government of a variance from the minimum elevation requirement of a local ordinance that is consistent with the requirements of this Part shall make the structure's owner ineligible for State disaster assistance for loss or damage from flooding to the structure permitted pursuant to the variance.
(c)	The responsible local government shall give notice of the provisions of subsection (b) of this section to any petitioner for a variance from the minimum elevation requirements of a local ordinance that is consistent with the requirements of this Part prior to issuing a permit pursuant to the variance and shall obtain the petitioner's signature on a form that waives the petitioner's claim to any State disaster assistance for loss or damage from flooding to the structure permitted pursuant to the variance.
	(d) A local government must demonstrate that it has adopted and implemented an ordinance consistent with the requirements of this Part in order to be eligible for State grants and loans for infrastructure improvements, including the development or expansion of a wastewater treatment system, drinking water treatment system, or associated collection or distribution system."
Section 3. A structure or use existing in the 100-year floodplain prior to July 1, 2000, or for which a building permit was issued prior to July 1, 2000, is not in violation of G.S. 143-215.54. On or after July 1, 2000, development in the base floodplain must at a minimum be consistent with the standards set out in G.S. 143-215.4. 
Section 4.  Notwithstanding G.S. 150B-21.1(a)(2), the Department of Crime Control and Public Safety is authorized to adopt temporary rules to implement this act.
Section 5.  Sections 1, 3, 4, and 5 are effective when this act becomes law. Section 2 becomes effective January 1, 2001.