North Carolina § 113A-104 - Coastal Resources Commission.

§ 113A-104. Coastal Resources Commission.

Established. - The General Assembly hereby establishes within the Department of Environmental Quality a commission to be designated the Coastal Resources Commission. Repealed by Session Laws 2013-360, s. 14.24(a), effective July 1, 2013. Composition. - The Coastal Resources Commission shall consist of 13 members as follows: One appointed by the Governor who shall at the time of appointment be a coastal property owner or experienced in land development. One appointed by the Governor who shall at the time of appointment be a coastal property owner or experienced in land development. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in engineering in the coastal area or a marine-related science. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in engineering in the coastal area or a marine-related science. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in coastal-related business. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in local government within the coastal area. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in coastal agriculture. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in commercial fishing. One appointed by the Governor who shall at the time of appointment be actively connected with or have experience in coastal forestry. One appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121 who shall at the time of appointment be actively connected with or have experience in sports fishing. One appointed by the General Assembly upon recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121 who shall serve at large. One appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121 who shall at the time of appointment be actively connected with or have experience in wildlife. One appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121 who shall serve at large. Appointment of Members. - As used in this section, the term "appointing authority" means the Governor in the case of members appointed by the Governor and means the General Assembly in the case of members appointed by the General Assembly. Appointments to the Commission shall be made to provide knowledge and experience in a diverse range of coastal interests. The members of the Commission shall serve and act on the Commission solely for the best interests of the public and public trust, and shall bring their particular knowledge and experience to the Commission for that end alone. Counties and cities in the coastal area may designate and transmit to the appointing authorities no later than May 1 of each even-numbered year qualified persons in the categories set out in subsection (b1) of this section corresponding to the Commission positions to be filled that year. The members of the Commission whose qualifications are described in subdivisions (3), (6), (7), (8), (9), (11), and (12) of subsection (b1) of this section shall be persons who do not derive any significant portion of their income from land development, construction, real estate sales, or lobbying and do not otherwise serve as agents for development-related business activities. All members of the Commission are covered persons for the purposes of Chapter 138A of the General Statutes, the State Government Ethics Act. As covered persons, members of the Commission shall comply with the applicable requirements of the State Government Ethics Act, including mandatory training, the public disclosure of economic interests, and ethical standards for covered persons. Members of the Commission shall comply with the provisions of the State Government Ethics Act to avoid conflicts of interest. The Governor may require additional disclosure of potential conflicts of interest by the members described in subsection (c1) of this section. The Governor may promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons described in subsection (c1) of this section. Repealed by Session Laws 2013-360, s. 14.24(a), effective July 1, 2013. Repealed by Session Laws 2013-360, s. 14.24(a), effective July 1, 2013. Office May Be Held Concurrently with Others. - Membership on the Coastal Resources Commission is hereby declared to be an office that may be held concurrently with other elective or appointive offices in addition to the maximum number of offices permitted to be held by one person under G.S. 128-1.1. Terms. - The members shall serve staggered terms of office of four years. At the expiration of each member's term, the appointing authority shall reappoint or replace the member with a new member of like qualification as specified in subsection (b1) of this section. Vacancies. - In the event of a vacancy arising otherwise than by expiration of term, the appointing authority shall appoint a successor of like qualification as specified in subsection (b1) of this section who shall then serve the remainder of his predecessor's term. Officers. - The chairman shall be designated by the Governor from among the members of the Commission to serve as chairman at the pleasure of the Governor. The vice-chairman shall be elected by and from the members of the Commission and shall serve for a term of two years or until the expiration of the vice-chairman's regularly appointed term. Compensation. - The members of the Commission shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138-5. Repealed by Session Laws 2013-360, s. 14.24(a), effective July 1, 2013. Attendance. - Regular attendance at Commission meetings is a duty of each member. The Commission shall develop procedures for declaring any seat on the Commission to be vacant upon failure by a member to perform this duty. Quorum. - A majority of the Commission shall constitute a quorum. History (1973, c. 1284, s. 1; 1975, c. 452, s. 5; 1977, c. 771, s. 4; c. 486, ss. 1-6; 1981, c. 932, s. 2.1; 1989, c. 505; c. 727, s. 218(64); 1997-443, s. 11A.119(a); 2013-360, s. 14.24(a); 2015-9, s. 1.3; 2015-241, s. 14.30(u); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.) Cross References. - See editor's notes at G.S. 113A-100 . Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted "Subchapter II of Chapter 163 A" for "Chapter 138A" in subsection (c2). Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (c2). Temporary Rules Regarding Exceptions to Setback. - Session Laws 2001-418, ss. 1 to 3, authorize the Coastal Resources Commission to adopt temporary rules to establish additional exceptions to the 30-foot buffer requirement along public trust and estuarine waters in certain circumstances and to allow structural modifications to piers to prevent or minimize storm damage. Direct the Coastal Resources Commission to Amend the Sediment Criteria Rule to Exempt Sediment from Cape Shoal Systems. - Session Laws 2017-10, s. 3.15(a)-(e), provides: "(a) Definitions. - "Sediment Criteria Rule" means 15A NCAC 07H.0312 (Technical Standards for Beach Fill Projects) for purposes of this section and its implementation. "(b) Sediment Criteria Rule. - Until the effective date of the revised permanent rule that the Coastal Resources Commission is required to adopt pursuant to subsection (d) of this section, the Commission and the Department of Environmental Quality shall implement the Sediment Criteria Rule, as provided in subsection (c) of this section. "(c) Implementation. - The Commission shall exempt from the permitting requirements of the Sediment Criteria Rule any sediment in the cape shoal systems used as a borrow site and any portion of an oceanfront beach that receives sediment from the cape shoal systems. For purposes of this section, 'cape shoal systems' includes the Frying Pan Shoals at Cape Fear, Lookout Shoals at Cape Lookout, and Diamond Shoals at Cape Hatteras. "(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Sediment Criteria Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4) , the rule adopted by the Commission, pursuant to this section, shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2) . "(e) Sunset. - This section expires when permanent rules adopted as required by subsection (d) of this section become effective." Editor's Note. - Session Laws 2012-202, s. 3, provides: "(a) Notwithstanding Article 7 of Chapter 113A of the General Statutes and rules adopted pursuant to that Article, the Coastal Resources Commission shall not deny a development permit for the replacement of a single-family or duplex residential dwelling with a total floor area greater than 5,000 square feet based on failure to meet the ocean hazard setback required under 15A NCAC 07H.0306(a)(2) if the structure meets all of the following criteria: "(1) The structure was originally constructed prior to August 11, 2009. "(2) The structure as replaced does not exceed the original footprint or square footage. "(3) The structure as replaced meets the minimum setback required under 15A NCAC 07H.0306(a)(2)(A). "(4) It is impossible for the structure to be rebuilt in a location that meets the ocean hazard setback criteria required under 15A NCAC 07H.0306(a)(2). "(5) The structure is rebuilt as far landward on the lot as feasible. "(b) No later than October 1, 2012, the Coastal Resources Commission shall adopt temporary rules consistent with the provisions of subsection (a) of this section. Notwithstanding G.S. 150B-19(4) , the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of subsection (a) of this section. The temporary rules shall remain in effect until permanent rules that replace the temporary rules become effective." Session Laws 2012-202, s. 4, provides: "The Coastal Resources Commission shall study the feasibility of creating a new Area of Environmental Concern for the lands adjacent to the mouth of the Cape Fear River. In studying this region, which shall at least encompass the Town of Caswell Beach and the Village of Bald Head Island, the Commission shall consider the unique coastal morphologies and hydrographic conditions not found elsewhere along the coast. As part of this study, the Commission shall collaborate with the Town of Caswell Beach, the Village of Bald Head Island, and landowners within and immediately adjacent to these two municipalities to identify regulatory concerns and develop strategies for creating a more efficient regulatory framework. If the Commission deems action is necessary to preserve, protect, and balance the economic and natural resources of this region, the Commission shall work to eliminate overlapping Areas of Environmental Concern in these areas and instead incorporate appropriate development standards into one single Area of Environmental Concern unique to this location. The Commission shall report its findings, including any proposed actions the Commission deems appropriate, to the Secretary of Environment and Natural Resources, the Governor, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, and the Environmental Review Commission on or before December 31, 2013." Session Laws 2012-202, s. 5, provides: "The Coastal Resources Commission shall study the feasibility of eliminating the Inlet Hazard Area of Environmental Concern and incorporating appropriate development standards adjacent to the State's developed inlets into the Ocean Erodible Area of Environmental Concern. If the Commission deems action is necessary to preserve, protect, and balance the economic and natural resources adjacent to inlets, the Commission shall consider the elimination of the inlet hazard boxes; the development of shoreline management strategies that take into account short- and long-term inlet shoreline oscillation and variation, including erosion rates and setback factors; the development of standards that account for the lateral movement of inlets and their impact on adjacent development and habitat; and consideration of how new and existing development standards, as well as existing and proposed development, are impacted by historical and ongoing beach and inlet management techniques, including dredging, beach fill, and engineered structures such as groins and jetties. As part of this study, the Commission shall collaborate with local governments and landowners affected by the Commission's Inlet Hazard Areas to identify regulatory concerns and develop strategies for creating a more efficient regulatory framework. The Commission shall report its findings, including any proposed actions the Commission deems appropriate, to the Secretary of Environment and Natural Resources, the Governor, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, and the Environmental Review Commission on or before January 31, 2015." Session Laws 2013-360, s. 14.24(b), provides: "Transition of Membership of the Coastal Resources Commission. - Except as otherwise provided in this section, the terms of all members of the Coastal Resources Commission serving on January 1, 2013, shall expire July 31, 2013. A new Commission of 13 members shall be appointed in the manner provided by G.S. 113A-104(b1) , as enacted by subsection (a) of this section. Members appointed in the manner provided by G.S. 113A-104(b1) , as enacted by subsection (a) of this section, shall be appointed no later than August 1, 2013. "(1) The member serving pursuant to G.S. 113A-104(b)(1) on January 1, 2013, shall continue to serve pursuant to G.S. 113A-104(b1)(8) , as enacted by subsection (a) of this section, until June 30, 2014. "(2) The member serving pursuant to G.S. 113A-104(b)(2) on January 1, 2013, shall continue to serve pursuant to G.S. 113A-104(b1)(10) , as enacted by subsection (a) of this section, until June 30, 2014. "(3) The member serving pursuant to G.S. 113A-104(b)(11) on January 1, 2013, whose term would otherwise expire on June 30, 2014, shall continue to serve pursuant to G.S. 113A-104(b1)(6) , as enacted by subsection (a) of this section, until June 30, 2014. "(4) The member serving pursuant to G.S. 113A-104(b)(5) on January 1, 2013, whose term would otherwise expire on June 30, 2014, shall continue to serve pursuant to G.S. 113A-104(b1)(9) , as enacted by subsection (a) of this section, until June 30, 2014. "Members of the Commission whose qualifications are described by subdivisions (1), (3), (5), (7), (11), and (13) of G.S. 113A-104(b1) , as enacted by subsection (a) of this section, shall be appointed for an initial term expiring on June 30, 2015, and subsequent appointments shall be for four-year terms thereafter. Members of the Commission whose qualifications are described by subdivisions (2), (4), (6), (8), (9), (10), and (12) of G.S. 113A-104(b1) , as enacted by subsection (a) of this section, shall be appointed for an initial term expiring on June 30, 2014, and subsequent appointments shall be for four-year terms thereafter." Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'" Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium." Session Laws 2013-360, s. 38.5, is a severability clause. Session Laws 2015-9 provides in its preamble: "Whereas, the Environmental Management Commission was established by Section 19 of S.L. 1973-1262, effective July 1, 1974; and "Whereas, as provided in G.S. 143B-282(a) , the Environmental Management Commission was established with the power and duty to promulgate rules for the protection, preservation, and enhancement of the water and air resources of the State; and "Whereas, the membership of the Environmental Management Commission was established by Section 20 of S.L. 1973-1262; and "Whereas, subdivision (9) of subsection (a) of Section 20 of S.L. 1973-1262 provided, 'The Governor, by executive order, shall promulgate criteria for determining the eligibility of persons under this section and for this purpose, may promulgate the rules, regulations or guidelines established by any federal agency interpreting and applying equivalent provisions of law.'; and "Whereas, Section 5 of S.L. 1979-1158 amended the provision enacted by subdivision (9) of subsection (a) of Section 20 of S.L. 1973-1262 to also provide, 'The Governor shall require adequate disclosure of potential conflicts of interest by members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons under this section, giving due regard to the requirements of federal legislation, and for this purpose may promulgate rules, regulations or guidelines in conformance with those established by any federal agency interpreting and applying provisions of federal law."'; and "Whereas, the provision enacted by subdivision (9) of subsection (a) of Section 20 of S.L. 1973-1262, as subsequently amended, currently provides in G.S. 143B-283(c) , 'The Governor shall require adequate disclosure of potential conflicts of interest by members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons under this subsection, giving due regard to the requirements of federal legislation, and for this purpose may promulgate rules, regulations or guidelines in conformance with those established by any federal agency interpreting and applying provisions of federal law.'; and "Whereas, the Coastal Resources Commission was established by Section 1 of S.L. 1973-1284, effective July 1, 1974; and "Whereas, the Coastal Resources Commission was established to implement the Coastal Area Management Act of 1974; and "Whereas, as provided in G.S. 113A-102(b) , the goals of the Coastal Area Management Act include management of the natural coastal systems in order to protect and maintain their natural productivity and their biological, economic, and esthetic values and management of development and preservation of the land and water resources of the coastal area in a manner consistent with the capability of the land and water for development, use, or preservation based on ecological considerations; and "Whereas, the membership of the Coastal Resources Commission was established by Section 1 of S.L. 1973-1284; and "Whereas, Section 1 of S.L. 1989-505 amended the membership provisions established by Section 1 of S.L. 1973-1284 to provide, 'The Governor shall require adequate disclosure of potential conflicts of interest by members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons under this section'; and "Whereas, the provision enacted by Section 1 of S.L. 1973-1284, as subsequently amended, currently provides, 'The Governor shall require adequate disclosure of potential conflicts of interest by these members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons under this subsection'; and "Whereas, the Coal Ash Management Commission was established by Section 3.(a) of S.L. 2014-122, effective September 20, 2014; and "Whereas, as provided in G.S. 130A-309.202(a) [now repealed], the Coal Ash Management Commission was established in recognition of the complexity and magnitude of the issues associated with the management of coal combustion residuals and the proper closure and remediation of coal combustion residuals surface impoundments; and "Whereas, as provided in G.S. 130A-309.213(c) , the Coal Ash Management Commission must evaluate all information submitted in accordance with the Coal Ash Management Act related to the proposed classifications of coal combustion residuals surface impoundments and may only approve a proposed classification if it determines that the classification was developed in accordance with the Coal Ash Management Act and that the classification accurately reflects the level of risk posed by the coal combustion residuals surface impoundment; and "Whereas, as provided in G.S. 130A-309.214(d) , the Coal Ash Management Commission must approve a Closure Plan if it determines that the Closure Plan was developed in accordance with the Coal Ash Management Act, that implementation of the Closure Plan according to the Closure Plan's schedule is technologically and economically feasible, and the Closure Plan is protective of the public health, safety, and welfare; the environment; and natural resources. In addition, the Commission may consider any impact on electricity costs and reliability, but this factor may not be dispositive of the Commission's determination; and "Whereas, like the Environmental Management Commission and the Coastal Resources Commission, the Coal Ash Management Commission was established to evaluate complex issues related to the risks posed by environmental contaminants and ensure that the actions taken to manage environmental contaminants are protective of the public health, safety, and welfare; the environment; and natural resources; and "Whereas, due to the similar powers and duties shared by the Coal Ash Management Commission with the Environmental Management Commission and the Coastal Resources Commission, the General Assembly modelled many of the provisions establishing the Coal Ash Management Commission on provisions establishing the Environmental Management Commission and the Coastal Resources Commission; and Whereas, the General Assembly modelled the conflict of interest and disclosure provision of the Coal Ash Management Commission found in G.S. 130A-309.202(j) [now repealed] on the long-standing and unchallenged conflict of interest and disclosure provisions of the Environmental Management Commission and the Coastal Resources Commission; and "Whereas, although the General Assembly finds that measures to prevent conflicts of interest for public servants and to provide abundant disclosure to prevent the appearance of conflicts of interest are of the utmost public good, the General Assembly finds that implementing such measures through issuance of an Executive Order by the Governor is unnecessary and that the Governor may determine that such additional measures are not necessary given the protections provided under Chapter 138A of the General Statutes, the State Government Ethics Act; and "Whereas, the holding of the North Carolina Supreme Court in Wallace v. Bone, 304 N.C. 591 (1982), prohibits legislators from serving on certain boards; and "Whereas, since Wallace v. Bone, the General Assembly has periodically enacted legislation removing legislators from serving in such capacities when those instances arise; and "Whereas, the General Assembly has determined that legislators are not eligible to serve on certain existing boards and commissions; Now, therefore," Session Laws 2015-286, s. 4.19, provides: "The Department of Environment and Natural Resources shall evaluate the water quality of surface waters in the Coastal Counties and the impact of stormwater on this water quality. The Department shall study and determine the maximum allowable built-upon area for the low density state stormwater option as directly related to the length of grassed swale treatment length; therefore providing data for a property to achieve increased built-upon area above current limits by providing a longer length of grassed swale through which the stormwater must pass. If it is determined that increases in the percentage of built-upon area can be allowed in this way without detriment to the water quality, the Department shall submit recommendations to the General Assembly for the levels of increases in built-upon area that can be supported with corresponding increases in the length of grassed swale through which the stormwater shall pass. No later than April 1, 2016, the Department shall report the results of its study, including recommendations, to the Environmental Review Commission". Session Laws 2017-10, s. 5.1, is a severability clause. Effect of Amendments. - Session Laws 2013-360, s. 14.24(a), effective July 1, 2013, deleted subsections (b), (d), (e), and (k); added subsection (b1), (c2), and (m); in subsection (c), added the first and last sentences, and deleted the former second and third paragraphs; in subsection (c1), substituted "(3), (6), (7), (8), (9), (11), and (12) of subsection (b1) of this section" for "(1) through (5), (9), and (11)" and "subsection" for "section," and added "these" in the second sentence; in subsection (g), substituted "appointing authority" for "Governor," "as" for "(as," "(b1)" for "(b)," and "section" for "section), in the manner provided by subsections (c) and (d) of this section. The initial term shall be determined by the Governor in accordance with customary practice but eight of the initial members shall be appointed for two years and seven for four years"; in subsection (h), substituted "appointing authority" for "Governor," "as" for "(as," "(b1)" for "(b)," and "section" for "section)," and deleted the second through fifth sentences; substituted "the vice-chairman's" for "his" in subsection (i); and added "Attendance" in subsection ( l ). Session Laws 2015-9, s. 1.3, effective April 27, 2015, deleted the former last two sentences in subsection (c1), which read: "The Governor shall require adequate disclosure of potential conflicts of interest by these members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of persons under this subsection"; and added the last two sentence in subsection (2). Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsection (a).