GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2023
S 1
SENATE BILL 673
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Short Title: Water and Wastewater Regulatory Relief Act. |
(Public) |
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Sponsors: |
Senators P. Newton, Sawrey, and Lazzara (Primary Sponsors). |
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Referred to: |
Rules and Operations of the Senate |
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April 10, 2023
A BILL TO BE ENTITLED
AN ACT to allow alternative peak daily sewage flow rates for design rate modeling and to reform and simplify approval procedures for certain water transfers.
The General Assembly of North Carolina enacts:
ALLOW ALTERNATIVE PEAK DAILY SEWAGE FLOW RATES
SECTION 1. G.S. 143‑215.1 is amended by adding the following new subsections to read:
"(f3) The permittee may calculate its wastewater flows for new dwelling units, including units that have yet to be connected and for which they have allocated capacity, at 75 gallons per day per bedroom.
(f4) No permits for sewer line extensions shall be issued to wastewater treatment systems owned or operated by municipalities, counties, sanitary districts, or public utilities unless they meet the following requirements:
(1) Prior to actual flow exceeding eighty percent (80%) of the system's permitted hydraulic capacity, based on the average flow during the last calendar year, the permittee shall submit an engineering evaluation of their future wastewater treatment, utilization, and disposal needs. This evaluation shall outline plans for meeting future wastewater treatment, utilization, or disposal needs by either expansion of the existing system, elimination or reduction of extraneous flows, or water conservation and shall include the source of funding for the improvements. If expansion is not proposed or is proposed for a later date, a justification shall be made that wastewater treatment needs will be met based on past growth records and future growth projections and, as appropriate, shall include conservation plans or other measures to achieve waste flow reductions.
(2) Prior to actual flow exceeding ninety percent (90%) of the system's permitted hydraulic capacity, based on the average flow during the last calendar year, the permittee shall obtain all permits needed for the expansion of the wastewater treatment, utilization, or disposal system and, if construction is needed, submit final plans and specifications for expansion, including a construction schedule. If expansion is not proposed or is proposed for a later date, a justification shall be made that wastewater treatment needs will be met based on past growth records and future growth projections and, as appropriate, shall include conservation plans or other specific measures to achieve waste flow reductions.
(f5) A permittee for a wastewater treatment system located in a county with a projected population growth rate above two percent (2%) annually and operating in compliance with all pollutant discharge standards and not exceeding its 12‑month average flow limitation may allocate their system's permitted hydraulic capacity, based on the average flow during the last calendar year, as follows:
(1) Up to one hundred ten percent (110%) allocation upon signing a contract for the expansion of the wastewater treatment, utilization, or disposal system within 36 months.
(2) Up to one hundred fifteen percent (115%) if the expansion of the wastewater treatment, utilization, or disposal system to increase the system capacity is within 24 months of completion."
REFORM WATER TRANSFER CERTIFICATION PROCEDURES
SECTION 2.(a) G.S. 143‑215.22G reads as rewritten:
"§ 143‑215.22G. Definitions.
In addition to the definitions set forth in G.S. 143‑212 and G.S. 143‑213, the following definitions apply to this Part.
(1) "Mainstem"
means that Mainstem. – That portion of a river having the same name
as a river basin defined in subdivision (1b) of this section.
"Mainstem" does not include named or unnamed tributaries.
(1a) "Public water
system" means any Public water system. – Any unit of local
government or large community water system subject to the requirements of
G.S. 143‑355(l).
(1b) "River basin" means any of the following
river basins designated on the map entitled "Major River Basins and Sub‑basins
in North Carolina" and filed in the Office of the Secretary of State on 16
April 1991. The term "river basin" includes any portion of the river
basin that extends into another state. Any area outside North Carolina that is
not included in one of the river basins listed in this subdivision comprises a
separate river basin.
a. 1‑1 Broad
River.
b. 2‑1 Haw
River.
c. 2‑2 Deep
River.
d. 2‑3 Cape
Fear River.
e. 2‑4 South
River.
f. 2‑5 Northeast
Cape Fear River.
g. 2‑6 New
River.
h. 3‑1 Catawba
River.
i. 3‑2 South
Fork Catawba River.
j. 4‑1 Chowan
River.
k. 4‑2 Meherrin
River.
l. 5‑1 Nolichucky
River.
m. 5‑2 French
Broad River.
n. 5‑3 Pigeon
River.
o. 6‑1 Hiwassee
River.
p. 7‑1 Little
Tennessee River.
q. 7‑2 Tuskasegee
(Tuckasegee) River.
r. 8‑1 Savannah
River.
s. 9‑1 Lumber
River.
t. 9‑2 Big
Shoe Heel Creek.
u. 9‑3 Waccamaw
River.
v. 9‑4 Shallotte
River.
w. 10‑1 Neuse
River.
x. 10‑2 Contentnea
Creek.
y. 10‑3 Trent
River.
z. 11‑1 New
River.
aa. 12‑1 Albemarle
Sound.
bb. 13‑1 Ocoee
River.
cc. 14‑1 Roanoke
River.
dd. 15‑1 Tar
River.
ee. 15‑2 Fishing
Creek.
ff. 15‑3 Pamlico
River and Sound.
gg. 16‑1 Watauga
River.
hh. 17‑1 White
Oak River.
ii. 18‑1 Yadkin
(Yadkin‑Pee Dee) River.
jj. 18‑2 South
Yadkin River.
kk. 18‑3 Uwharrie
River.
ll. 18‑4 Rocky
River.
(1b) River basin. – The North Carolina portion of the drainages included within the United States Geological Survey accounting units listed in this subdivision. The term "river basin" includes any portion of the river basin that extends into another state. Any area outside North Carolina that is not included in one of the river basins listed in this subdivision comprises a separate river basin.
a. 030101 Roanoke River, which includes the following subbasins: 03010102, 03010103, 03010104, 03010106, and 03010107.
b. 030102 Pasquotank and rivers other than the Roanoke and Chowan draining into Albemarle Sound, which includes the following subbasin: 03010205.
c. 030102 Chowan River, which includes the following subbasins: 03010201, 03010202, 03010203, and 03010204.
d. 030201 Tar‑Pamlico, which includes the following subbasins: 03020101, 03020102, 03020103, 03020104, and 03020105.
e. 030202 Neuse, which includes the following subbasins: 03020201, 03020202, 03020203, and 03020204.
f. 030203 White Oak, which includes the following subbasins: 03020301 and 03020302.
g. 030300 Cape Fear River, which includes the following subbasins: 03030002, 03030003, 03030004, 03030005, 03030006, and 03030007.
h. 030401 Yadkin‑Pee Dee River, which includes the following subbasins: 03040101, 03040102, 03040103, 03040104, 03040105, 03040201, and 03040202.
i. 030402 Lumber River, which includes the following subbasins: 03040203, 03040204, 03040206, and 03040208.
j. 030501 Broad River, which includes the following subbasin: 03050105.
k. 030501 Catawba River, which includes the following subbasins: 03050101, 03050102, and 03050103.
l. 030601 Savannah River, which includes the following subbasins: 03060101 and 03060102.
m. 050500 New River, which includes the following subbasin: 05050001.
n. 060101 French Broad River, which includes the following subbasins: 06010105, 06010106, and 06010108.
o. 060101 Watauga River, which includes the following subbasin: 06010103.
p. 060102 Little Tennessee River, which includes the following subbasins: 06010202, 06010203, and 06010204.
q. 060200 Hiwassee River, which includes the following subbasins: 06020002 and 06020003.
(1c) Subbasin. – The eight‑digit cataloging units of the United States Geologic Survey as set forth in subdivision (1b) of this section.
(2) "Surface
water" means any Surface water. – Any of the waters of the
State located on the land surface that are not derived by pumping from
groundwater.
(3) "Transfer"
means the Transfer. – The withdrawal, diversion, or pumping of
surface water from one river basin or subbasin and discharge of all or
any part of the water in a river basin or subbasin different from the
origin. However, notwithstanding the river basin definitions in G.S. 143‑215.22G(1b),
subdivision (1b) of this section or the subbasin definitions in subdivision
(1c) of this section, the following are not transfers under this Part:
a. The discharge of water upstream from the point where it is withdrawn.
b. The discharge of water downstream from the point where it is withdrawn."
SECTION 2.(b) G.S. 143‑215.22H reads as rewritten:
"§ 143‑215.22H. Registration of water withdrawals and transfers required.
(a) Any person who withdraws 100,000 gallons per day or more of water from the surface or groundwaters of the State or who transfers 100,000 gallons per day or more of water from one river basin or subbasin to another shall register the withdrawal or transfer with the Commission. A person registering a water withdrawal or transfer shall provide the Commission with the following information:
(1) The maximum daily amount of the water withdrawal or transfer expressed in thousands of gallons per day.
(1a) The monthly average withdrawal or transfer expressed in thousands of gallons per day.
(2) The location of the points of withdrawal and discharge and the capacity of each facility used to make the withdrawal or transfer.
(3) The monthly average discharge expressed in thousands of gallons per day.
(4) For transfers of 2,000,000 gallons of water or more per day, the registrant shall submit a water balance for the water system with a 50‑year planning horizon beginning with the current year, the name of the water system owning the pipe transferring water across the basin boundary, the daily raw water withdrawals or purchase amounts in million‑gallons of water per day (MGD), the average daily or maximum daily wastewater discharge for each basin in MGD, the total water returned to the source basin, and the estimated water being transferred. The data used to determine the water balance shall align with the Local Water Supply plan required in G.S. 143‑355(l).
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(f) Any person who transfers 2,000,000 gallons of water or more per day shall submit an annual report by February 28 of each year with the daily raw water withdrawals or purchase amounts in MGD, the average daily or maximum daily wastewater discharge for each basin in MGD, the total water returned to the source basin, and the estimated water being transferred for the previous calendar year."
SECTION 2.(c) G.S. 143‑215.22L reads as rewritten:
"§ 143‑215.22L. Regulation of surface water transfers.
(a) Certificate Required.
Required for Interbasin Transfer. – No person, without first
obtaining a certificate from the Commission, may:
(1) Initiate a transfer of 2,000,000
5,000,000 gallons of water or more per day, calculated as a daily
average of a calendar maximum month and not to exceed 3,000,000 7,500,000
gallons per day in any one day, from one river basin or one subbasin to
another.
(2) Increase the amount of an
existing transfer of water from one river basin or one subbasin to
another by twenty‑five percent (25%) or more above the average daily
amount transferred during the year ending 1 July July 1, 1993 if
the total transfer including the increase is 2,000,000 7,500,000 gallons
or more per day.
(3) Increase an existing
transfer of water from one river basin to another by 2,000,000 gallons of
water per day, calculated as a daily average of a calendar maximum month and
not to exceed 3,000,000 gallons per day in any one day, above the amount
approved by the Commission in a certificate issued under G.S. 162A‑7
prior to 1 July July 1, 1993.
(4) Increase an existing transfer of water from one subbasin to another subbasin within the same river basin by 5,000,000 gallons of water or more per day, calculated as a daily average of a calendar maximum month, with an increase of no more than 7,500,000 gallons per day in any one day during any consecutive 10‑year period.
(b) Exception. – Notwithstanding the provisions of subsection (a) of this section, a certificate shall not be required for the following:
(1) to To transfer water from one river
basin to another up to the full capacity of a facility to transfer water from
one basin to another if the facility was in existence or under construction on 1
July July 1, 1993.
(2) To test interconnections between parties to an interlocal mutual support agreement that could be used for purposes of transfer authorized under subsection (q) or (q1) of this section, when the following conditions are met:
a. All parties to the interlocal, mutual support agreement request the transfer.
b. The test complies with the provisions for time, duration, and other aspects of the test as the Secretary may specify.
(c) Notice of Intent to
File a Petition. Intent. – An applicant shall prepare a notice of
intent to file a petition that includes a nontechnical description of the
applicant's request and an identification of the proposed water source. Within
90 days after the applicant files a notice of intent to file a petition, the
applicant shall hold at least one public meeting in the source river basin
upstream from the proposed point of withdrawal, at least one public meeting in
the source river basin downstream from the proposed point of withdrawal, and at
least one public meeting in the receiving river basin to provide information to
interested parties and the public regarding the nature and extent of the
proposed transfer and to receive comment on the scope of the environmental
documents. Written notice of the public meetings shall be provided at least 30
days before the public meetings. At the time the applicant gives notice of the
public meetings, the applicant shall request comment on the alternatives and
issues that should be addressed in the environmental documents required by this
section. The applicant shall accept written comment on the scope of the
environmental documents for a minimum of 30 days following the last public
meeting. Notice of the public meetings and opportunity to comment on the scope
of the environmental documents shall be provided as follows:submit to
the Department a notice of intent to initiate an environmental study as
required in subsection (d) of this section.
(c1) Requirements for Notice. – Unless otherwise specified, notice required by subsection (d) of this section shall be provided as follows:
(1) By publishing notice in the North Carolina Register.
(2) By publishing notice in a newspaper of general circulation in:
a. Each county in this State located in whole or in part of the area of the source river basin upstream from the proposed point of withdrawal.
b. Each city or county located in a state located in whole or in part of the surface drainage basin area of the source river basin that also falls within, in whole or in part, the area denoted by one of the following eight‑digit cataloging units as organized by the United States Geological Survey:
03050105 (Broad River: NC and SC);
03050106 (Broad River: SC);
03050107 (Broad River: SC);
03050108 (Broad River: SC);
05050001 (New River: NC and VA);
05050002 (New River: VA and WV);
03050101 (Catawba River: NC and SC);
03050103 (Catawba River: NC and SC);
03050104 (Catawba River: SC);
03010203 (Chowan River: NC and VA);
03010204 (Chowan River: NC and VA);
06010105 (French Broad River: NC and TN);
06010106 (French Broad River: NC and TN);
06010107 (French Broad River: TN);
06010108 (French Broad River: NC and TN);
06020001 (Hiwassee River: AL, GA, TN);
06020002 (Hiwassee River: GA, NC, TN);
06010201 (Little Tennessee River: TN);
06010202 (Little Tennessee River: TN, GA, and NC);
06010204 (Little Tennessee River: NC and TN);
03060101 (Savannah River: NC and SC);
03060102 (Savannah River: GA, NC, and SC);
03060103 (Savannah River: GA and SC);
03060104 (Savannah River: GA);
03060105 (Savannah River: GA);
03040203 (Lumber River: NC and SC);
03040204 (Lumber River: NC and SC);
03040206 (Lumber River: NC and SC);
03040207 (Lumber River: NC and SC);
03010205 (Albemarle Sound: NC and VA);
06020003 (Ocoee River: GA, NC, and TN);
03010101 (Roanoke River: VA);
03010102 (Roanoke River: NC and VA);
03010103 (Roanoke River: NC and VA);
03010104 (Roanoke River: NC and VA);
03010105 (Roanoke River: VA);
03010106 (Roanoke River: NC and VA);
06010102 (Watauga River: TN and VA);
06010103 (Watauga River: NC and TN);
03040101 (Yadkin River: VA and NC);
03040104 (Yadkin River: NC and SC);
03040105 (Yadkin River: NC and SC);
03040201 (Yadkin River: NC and SC);
03040202 (Yadkin River: NC and SC).
c. Each county in this State located in whole or in part of the area of the source river basin downstream from the proposed point of withdrawal.
d. Any area in the State in a river basin for which the source river basin has been identified as a future source of water in a local water supply plan prepared pursuant to G.S. 143‑355(l).
e. Each county in the State located in whole or in part of the receiving river basin.
(3) By giving notice by first‑class mail or electronic mail to each of the following:
a. The board of commissioners of each county in this State or the governing body of any county or city that is politically independent of a county in any state that is located entirely or partially within the source river basin of the proposed transfer and that also falls within, in whole or in part, the area denoted by one of the eight‑digit cataloging units listed in sub‑subdivision b. of subdivision (2) of this subsection.
b. The board of commissioners of each county in this State or the governing body of any county or city that is politically independent of a county in any state that is located entirely or partially within the receiving river basin of the proposed transfer and that also falls within, in whole or in part, the area denoted by one of the eight‑digit cataloging units listed in sub‑subdivision b. of subdivision (2) of this subsection.
c. The governing body of any public water system that withdraws water upstream or downstream from the withdrawal point of the proposed transfer.
d. If any portion of the source or receiving river basins is located in another state, all state water management or use agencies, environmental protection agencies, and the office of the governor in that state upstream or downstream from the withdrawal point of the proposed transfer.
e. All persons who have registered a water withdrawal or transfer from the proposed source river basin under this Part or under similar law in an another state.
f. All persons who hold a certificate for a transfer of water from the proposed source river basin under this Part or under similar law in an another state.
g. All persons who hold a National Pollutant Discharge Elimination System (NPDES) wastewater discharge permit for a discharge of 100,000 gallons per day or more upstream or downstream from the proposed point of withdrawal.
h. To any other person who submits to the applicant a written request to receive all notices relating to the petition.
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(e) Public Hearing on the
Draft Environmental Document. – The Commission shall hold a public hearing on
the draft environmental document for a proposed interbasin transfer after
giving at least 30 days' written notice of the hearing in the Environmental
Bulletin and as provided in subdivisions (2) and (3) of subsection (c) of this
section. The notice shall indicate (i) where a copy of the environmental
document can be reviewed and reviewed, (ii) the procedure to be
followed by anyone wishing to submit written comments and questions on the
environmental document. document, and (iii) that judicial review of
the environmental document will be limited to issues raised in submitted written
comments or in oral comments provided at public hearings required by this
section. The Commission shall prepare a record of all comments and comments,
written responses to questions posed in writing. writing, and
transcripts of oral comments provided at the public hearing required by this
subsection. The record shall include complete copies of scientific or
technical comments related to the potential impact of the interbasin transfer.
The Commission shall accept written comment on the draft environmental document
for a minimum of 30 days following the last public hearing. The applicant who
petitions the Commission for a certificate under this section shall pay the
costs associated with the notice and public hearing on the draft environmental
document.
(f) Determination of
Adequacy of Environmental Document. – The Commission shall not act on any
petition for an interbasin a transfer until the Commission has
determined that the environmental document is complete and adequate. A decision
on the completeness and adequacy of the environmental document is
subject to review in a contested case on the decision of the Commission to
issue or deny a certificate under this section.
(g) Petition. – An applicant for a certificate shall petition the Commission for the certificate. The petition shall be in writing and shall include all of the following:
(1) A general description of the facilities to be used to transfer the water, including current and projected areas to be served by the transfer, current and projected capacities of intakes, and other relevant facilities.
(2) A description of all the proposed consumptive and nonconsumptive uses of the water to be transferred.
(3) A description of the water quality of the source river and receiving river, including information on aquatic habitat for rare, threatened, and endangered species; in‑stream flow data for segments of the source and receiving rivers that may be affected by the transfer; and any waters that are impaired pursuant to section 303(d) of the federal Clean Water Act (33 U.S.C. § 1313(d)).
(4) A description of the water conservation measures used by the applicant at the time of the petition and any additional water conservation measures that the applicant will implement if the certificate is granted.
(5) A description of all
sources of water within the receiving river basin, basin or subbasin,
including surface water impoundments, groundwater wells, reinjection
storage, and purchase of water from another source within the river basin, basin
or subbasin, that is a practicable alternative to the proposed transfer
that would meet the applicant's water supply needs. The description of water
sources shall include sources available at the time of the petition for a
certificate and any planned or potential water sources.
(6) A description of water
transfers and withdrawals registered under G.S. 143‑215.22H or
included in a local water supply plan prepared pursuant to G.S. 143‑355(l)
from the source river basin, basin or subbasin, including
transfers and withdrawals at the time of the petition for a certificate and any
planned or reasonably foreseeable transfers or withdrawals by a public water
system with service area located within the source river basin.basin
or subbasin.
(7) A demonstration that the
proposed transfer, if added to all other transfers and withdrawals required to
be registered under G.S. 143‑215.22H or included in any local water
supply plan prepared by a public water system with service area located within
the source river basin or subbasin pursuant to G.S. 143‑355(l)
from the source river basin or subbasin at the time of the petition for
a certificate, would not reduce the amount of water available for use in the
source river basin or subbasin to a degree that would impair existing
uses, pursuant to the antidegradation policy set out in 40 Code of Federal
Regulation § 131.12 (Antidegradation Policy) (1 July 2006 Edition) and the
statewide antidegradation policy adopted pursuant thereto, or existing and
planned consumptive and nonconsumptive uses of the water in the source river basin.
basin or subbasin. If the proposed transfer would impact a reservoir
within the source river basin, basin or subbasin, the
demonstration must include a finding that the transfer would not result in a
water level in the reservoir that is inadequate to support existing uses of the
reservoir, including recreational uses.
(8) The applicant's future
water supply needs and the present and reasonably foreseeable future water
supply needs for public water systems with service area located within the
source river basin. basin or subbasin. The analysis of future
water supply needs shall include agricultural, recreational, and industrial
uses, and electric power generation. Local water supply plans prepared pursuant
to G.S. 143‑355(l) for water systems with service area located
within the source river basin or subbasin shall be used to evaluate the
projected future water needs in the source river basin or subbasin that
will be met by public water systems.
(9) The applicant's water supply plan prepared pursuant to G.S. 143‑355(l). If the applicant's water supply plan is more than two years old at the time of the petition, then the applicant shall include with the petition an updated water supply plan.
(10) Any other information deemed necessary by the Commission for review of the proposed water transfer.
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(i) Draft Determination. –
Within 90 days after the Commission determines that the environmental
document prepared in accordance with subsection (d) of this section is adequate
complete or the applicant submits its petition for a certificate,
whichever occurs later, the Commission shall issue a draft determination on
whether to grant the certificate. certificate, in whole or in part,
or to deny the certificate. The draft determination shall be based on the
criteria set out in this section and shall include the conditions and
limitations, findings of fact, and conclusions of law that would be required in
a final determination. Notice of the draft determination shall be given as
provided in subsection (c) (c1) of this section.
(j) Public Hearing on the
Draft Determination. – Within 60 days of the issuance of the draft
determination as provided in subsection (i) of this section, the Commission
shall hold public hearings at least one public hearing on the
draft determination. At least one hearing shall be held in the affected area
of the source river basin, and at least one hearing shall be held in the
affected area of the receiving river basin. In determining whether more
than one public hearing should be held within either the source or receiving
river basins, held, the Commission shall consider the differing or
conflicting interests that may exist within the river basins, basins
or subbasins, including the interests of both upstream and downstream
parties potentially affected by the proposed transfer. The public hearings hearing
or hearings shall be conducted by one or more hearing officers appointed by
the Chair of the Commission. The hearing officers may be members of the
Commission or employees of the Department. The Commission shall give at least
30 days' written notice of the public hearing as provided in subsection (c) (c1)
of this section. The Commission shall accept written comment on the draft
determination for a minimum of 30 days following the last public hearing. The
Commission shall prepare a record of all comments and written responses to
questions posed in writing. The record shall include complete copies of
scientific or technical comments related to the potential impact of the interbasin
transfer. The applicant who petitions the Commission for a certificate
under this section shall pay the costs associated with the notice and public
hearing on the draft determination.
(k) Final Determination: Factors to be Considered. – In determining whether a certificate may be issued for the transfer, the Commission shall specifically consider each of the following items and state in writing its findings of fact and conclusions of law with regard to each item:
(1) The necessity and reasonableness of the amount of surface water proposed to be transferred and its proposed uses.
(2) The present and
reasonably foreseeable future detrimental effects on the source river basin,
basin or subbasin, including present and future effects on public,
industrial, economic, recreational, and agricultural water supply needs,
wastewater assimilation, water quality, fish and wildlife habitat, electric
power generation, navigation, and recreation. Local water supply plans for
public water systems with service area located within the source river basin or
subbasin prepared pursuant to G.S. 143‑355(l) shall be used to
evaluate the projected future water needs in the source river basin or
subbasin that will be met by public water systems. Information on projected
future water needs for public water systems with service area located within
the source river basin or subbasin that is more recent than the local
water supply plans may be used if the Commission finds the information to be
reliable. The determination shall include a specific finding as to measures
that are necessary or advisable to mitigate or avoid detrimental impacts on the
source river basin.basin or subbasin.
(3) The cumulative effect on
the source major river basin of any water transfer or consumptive water
use that, at the time the Commission considers the petition for a certificate
is occurring, is authorized under this section, or is projected in any local
water supply plan for public water systems with service area located within the
source river basin that has been submitted to the Department in accordance with
G.S. 143‑355(l).
(4) The present and
reasonably foreseeable future beneficial and detrimental effects on the
receiving river basin, basin or subbasin, including present and
future effects on public, industrial, economic, recreational, and agricultural
water supply needs, wastewater assimilation, water quality, fish and wildlife
habitat, electric power generation, navigation, and recreation. Local water
supply plans prepared pursuant to G.S. 143‑355(l) that affect the
receiving river basin or subbasin shall be used to evaluate the
projected future water needs in the receiving river basin or subbasin that
will be met by public water systems. Information on projected future water
needs that is more recent than the local water supply plans may be used if the
Commission finds the information to be reliable. The determination shall
include a specific finding as to measures that are necessary or advisable to
mitigate or avoid detrimental impacts on the receiving river basin.basin
or subbasin.
(5) The availability of
reasonable alternatives to the proposed transfer, including the potential
capacity of alternative sources of water, the potential of each alternative to
reduce the amount of or avoid the proposed transfer, probable costs, and
environmental impacts. In considering alternatives, the Commission is not
limited to consideration of alternatives that have been proposed, studied, or considered
by the applicant. The determination shall include a specific finding as to why
the applicant's need for water cannot be satisfied by alternatives within the
receiving basin, including unused capacity under a transfer for which a
certificate is in effect or that is otherwise authorized by law at the time the
applicant submits the petition. The determination shall consider the extent to
which access to potential sources of surface water or groundwater within the
receiving river basin or subbasin is no longer available due to
depletion, contamination, or the declaration of a capacity use area under Part
2 of Article 21 of Chapter 143 of the General Statutes. The determination shall
consider the feasibility of the applicant's purchase of water from other water
suppliers within the receiving basin or subbasin and of the transfer of
water from another sub‑basin subbasin within the receiving major
river basin. Except in circumstances of technical or economic infeasibility
or adverse environmental impact, the Commission's determination as to
reasonable alternatives shall give preference to alternatives that would
involve a transfer from one sub‑basin subbasin to another
within the major receiving river basin over alternatives that would
involve a transfer from one major river basin to another major river
basin.
(6) If applicable to the proposed project, the applicant's present and proposed use of impoundment storage capacity to store water during high‑flow periods for use during low‑flow periods and the applicant's right of withdrawal under G.S. 143‑215.44 through G.S. 143‑215.50.
(7) If the water to be withdrawn or transferred is stored in a multipurpose reservoir constructed by the United States Army Corps of Engineers, the purposes and water storage allocations established for the reservoir at the time the reservoir was authorized by the Congress of the United States.
(8) Whether the service area
of the applicant is located in both the source river basin or subbasin and
the receiving river basin.basin or subbasin.
(8a) Whether the applicant's petition for a certificate is materially and substantially complete in accordance with the requirements of this section.
(8b) Whether the applicant materially and substantially complied with all requirements for notice to be given by the applicant pursuant to this section.
(9) Any other facts and circumstances that are reasonably necessary to carry out the purposes of this Part.
(l) Final Determination: Information to be Considered. – In determining whether a certificate may be issued for the transfer, the Commission shall consider all of the following sources of information:
(1) The petition.
(2) The environmental document prepared pursuant to subsection (d) of this section.
(3) All oral and written comment and all accompanying materials or evidence submitted pursuant to subsections (e) and (j) of this section.
(4) Information developed by
or available to the Department on the water quality of the source river basin or
subbasin and the receiving river basin, basin or subbasin, including
waters that are identified as impaired pursuant to section 303(d) of the
federal Clean Water Act (33 U.S.C. § 1313(d)), that are subject to a total
maximum daily load (TMDL) limit under subsections (d) and (e) of section 303 of
the federal Clean Water Act, or that would have their assimilative capacity
impaired if the certificate is issued.
(5) Any other information that the Commission determines to be relevant and useful.
(m) Final Determination: Burden and Standard of Proof; Specific Findings. – The Commission shall grant a certificate for a water transfer if the Commission finds that the applicant has established by a preponderance of the evidence all of the following:
(1) The benefits of the proposed transfer outweigh the detriments of the proposed transfer. In making this determination, the Commission shall be guided by the approved environmental document and the policy set out in subsection (t) of this section.
(2) The detriments have been
or will be mitigated to the maximum degree practicable.in accordance
with subsection (t) of this section.
(3) The amount of the transfer does not exceed the amount of the projected shortfall under the applicant's water supply plan after first taking into account all other sources of water that are available to the applicant.
(4) There are no reasonable alternatives to the proposed transfer.
(n) Final Determination:
Certificate Conditions and Limitations. – The Commission may grant the
certificate in whole or in part, or deny the certificate. The Commission may
impose any conditions or limitations on a certificate that the Commission finds
necessary to achieve the purposes of this Part including a limit on the period
for which the certificate is valid. The conditions and limitations shall
include any mitigation measures proposed by the applicant to minimize any
detrimental effects within the source and receiving river basins. basins
or subbasins. In addition, the certificate shall require all of the
following conditions and limitations:
(1) A water conservation plan
that specifies the water conservation measures that will be implemented by the
applicant in the receiving river basin to ensure the efficient use of the
transferred water. Except in circumstances of technical or economic
infeasibility or adverse environmental impact, the water conservation plan
shall provide for the mandatory implementation of water conservation measures
by the applicant that equal or exceed the most stringent water conservation
plan implemented by a public water system that withdraws water from the source
river basin.basin or subbasin.
(2) A drought management plan
that specifies how the transfer shall be managed to protect the source river
basin or subbasin during drought conditions or other emergencies that
occur within the source river basin. basin or subbasin. Except in
circumstances of technical or economic infeasibility or adverse environmental
impact, this drought management plan shall include mandatory reductions in the
permitted amount of the transfer based on the severity and duration of a
drought occurring within the source river basin or subbasin and shall
provide for the mandatory implementation of a drought management plan by the
applicant that equals or exceeds the most stringent water conservation drought
management plan implemented by a public water system that withdraws water
from the source river basin.basin or subbasin.
(3) The maximum amount of water that may be transferred, calculated as a daily average of a calendar month, and methods or devices required to be installed and operated that measure the amount of water that is transferred.
(4) A provision that the
Commission may amend a certificate to reduce the maximum amount of water
authorized to be transferred whenever it appears that an alternative source of
water is available to the certificate holder from within the receiving river basin,
basin or subbasin, including, but not limited to, the purchase of
water from another water supplier within the receiving basin or to the transfer
of water from another sub‑basin subbasin within the
receiving major river basin.
(5) A provision that the Commission shall amend the certificate to reduce the maximum amount of water authorized to be transferred if the Commission finds that the applicant's current projected water needs are significantly less than the applicant's projected water needs at the time the certificate was granted.
(6) A requirement that the certificate holder report the quantity of water transferred during each calendar quarter. The report required by this subdivision shall be submitted to the Commission no later than 30 days after the end of the quarter.
(7) Except as provided in this subdivision, a provision that the applicant will not resell the water that would be transferred pursuant to the certificate to another public water system. This limitation shall not apply in the case of a proposed resale or transfer among public water systems within the receiving river basin or subbasin as part of an interlocal agreement or other regional water supply arrangement, provided that each participant in the interlocal agreement or regional water supply arrangement is a co‑applicant for the certificate and will be subject to all the terms, conditions, and limitations made applicable to any lead or primary applicant.
…
(t) Statement of Policy. –
It is the public policy of the State to maintain, protect, and enhance water
quality within North Carolina. It is the public policy of this State that the
reasonably foreseeable future water needs of a public water system with its
service area located primarily in the receiving river basin or subbasin are
subordinate to the reasonably foreseeable future water needs of a public water
system with its service area located primarily in the source river basin. basin
or subbasin. Further, it is the public policy of the State that the
cumulative impact of transfers from a source river basin or subbasin shall
not result in a violation of the antidegradation policy set out in 40 Code of
Federal Regulations § 131.12 (1 July 2006 Edition) and the statewide
antidegradation policy adopted pursuant thereto.
(u) Repealed by Session Laws 2013‑388, s. 2, effective August 23, 2013.
(v) Modification of Certificate. – A certificate may be modified as provided in this subsection:
(1) The Commission or the Department may make any of the following modifications to a certificate after providing electronic notice to persons who have identified themselves in writing as interested parties:
a. Correction of typographical errors.
b. Clarification of existing conditions or language.
c. Updates, requested by the certificate holder, to a conservation plan, drought management plan, or compliance and monitoring plan.
d. Modifications requested by the certificate holder to reflect altered requirements due to the amendment of this section.
(2) A person who holds a
certificate for an interbasin a transfer of water may
request that the Commission modify the certificate. The request shall be
considered and a determination made according to the following procedures:
a. The certificate must have been issued pursuant to G.S. 162A‑7, 143‑215.22I, or 143‑215.22L and the certificate holder must be in substantial compliance with the certificate.
b. The certificate holder shall file a notice of
intent to file a request for modification that includes a nontechnical
description of the certificate holder's request and identification of the
proposed water source.
c. The certificate holder shall prepare an environmental document pursuant to subsection (d) of this section, except that an environmental impact statement shall not be required for the modification of a certificate unless it would otherwise be required by Article 1 of Chapter 113A of the General Statutes.
d. Upon determining that the
documentation submitted by the certificate holder is adequate to satisfy the
requirements of this subsection, the Department shall publish a notice of the
request for modification in the North Carolina Register and shall hold a public
hearing at a location convenient to both the source and receiving river basins.
The Department shall provide written notice of the request for the modification
and the public hearing in the Environmental Bulletin, a newspaper of general
circulation in the source river basin, a newspaper of general circulation in
the receiving river basin, and as provided in subdivision (3) of subsection (c)
(c1) of this section. The certificate holder who petitions the Commission
for a modification under this subdivision shall pay the costs associated with
the notice and public hearing.
e. The Department shall accept comments on the requested modification for a minimum of 30 days following the public hearing.
f. The Commission or the Department may require the certificate holder to provide any additional information or documentation it deems reasonably necessary in order to make a final determination.
g. The Commission shall make a final determination whether to grant the requested modification based on the factors set out in subsection (k) of this section, information provided by the certificate holder, and any other information the Commission deems relevant. The Commission shall state in writing its findings of fact and conclusions of law with regard to each factor.
h. The Commission shall grant the requested modification if it finds that the certificate holder has established by a preponderance of the evidence that the requested modification satisfies the requirements of subsection (m) of this section. The Commission may grant the requested modification in whole or in part, or deny the request, and may impose such limitations and conditions on the modified certificate as it deems necessary and relevant to the modification.
i. The Commission shall not grant a request for modification if the modification would result in the transfer of water to an additional major river basin.
j. The Commission shall not grant a request for modification if the modification would be inconsistent with the December 3, 2010 Settlement Agreement entered into between the State of North Carolina, the State of South Carolina, Duke Energy Carolinas, and the Catawba River Water Supply Project.
(w) Alternate Requirements
for Coastal Counties and Counties, Reservoirs Constructed by the
United States Army Corps of Engineers. Engineers, and Transfers. –
A petition for a certificate (i) to transfer surface water to supplement ground
water supplies in the 15 counties designated as the Central Capacity Use Area
under 15A NCAC 2E.0501, (ii) to transfer surface water withdrawn from the
mainstem of a river to provide service to one of the coastal area counties
designated pursuant to G.S. 113A‑103, or (iii) (iii) to
transfer surface water among subbasins within the same river basin, or (iv) to
withdraw or transfer water stored in any multipurpose reservoir constructed by
the United States Army Corps of Engineers and partially located in a state
adjacent to North Carolina, provided the United States Army Corps of Engineers
approved the withdrawal or transfer on or before July 1, 2014, shall be
considered and a determination made according to the following procedures:
(1) The applicant shall file a notice of intent that
includes a nontechnical description of the applicant's request and
identification of the proposed water source.
(2) The applicant shall prepare an environmental document pursuant to subsection (d) of this section, except that an environmental impact statement shall not be required unless it would otherwise be required by Article 1 of Chapter 113A of the General Statutes.
(3) Upon determining that the
documentation submitted by the applicant is adequate to satisfy the
requirements of this subsection, the Department shall publish a notice of the
petition in the North Carolina Register and shall hold a public hearing at a
location convenient to both the source and receiving river basins. The
Department shall provide written notice of the petition and the public hearing
in the Environmental Bulletin, a newspaper of general circulation in the source
river basin, a newspaper of general circulation in the receiving river basin,
and as provided in subdivision (3) of subsection (c) (c1) of this
section. The applicant who petitions the Commission for a certificate under
this subdivision shall pay the costs associated with the notice and public
hearing.
(4) The Department shall accept comments on the petition for a minimum of 30 days following the public hearing.
(5) The Commission or the Department may require the applicant to provide any additional information or documentation it deems reasonably necessary in order to make a final determination.
(6) The Commission shall make a final determination whether to grant the certificate based on the factors set out in subsection (k) of this section, information provided by the applicant, and any other information the Commission deems relevant. The Commission shall state in writing its findings of fact and conclusions of law with regard to each factor.
(7) The Commission shall grant the certificate if it finds that the applicant has established by a preponderance of the evidence that the petition satisfies the requirements of subsection (m) of this section. The Commission may grant the certificate in whole or in part, or deny the request, and may impose such limitations and conditions on the certificate as it deems necessary and relevant.
(x) Subbasin Transfer Reporting. – Any person who increases the amount of an existing transfer of water from one subbasin to another subbasin within the same river basin, such that the total transfer of water from river basin or subbasin to another is more than 5,000,000 gallons of water or more per day, calculated as a daily average of a calendar month or more than 7,500,000 gallons per day in any one day, without obtaining a certificate, shall submit an annual subbasin to subbasin impact report to the Department by August 1 in each fiscal year that the amount of subbasin to subbasin transfer has increased."
SECTION 2.(d) This section is effective when it becomes law and applies to any petition for a certificate for a transfer of surface water from one river basin or subbasin to another river basin or subbasin first made on or after that date.
EFFECTIVE DATE
SECTION 3. Except as otherwise provided, this act is effective when it becomes law.