North Carolina § 143-214 - 5. Water supply watershed protection.

§ 143-214. 5. Water supply watershed protection.

Policy Statement. - This section provides for a cooperative program of water supply watershed management and protection to be administered by local governments consistent with minimum statewide management requirements established by the Commission. If a local government fails to adopt a water supply watershed protection program or does not adequately carry out its responsibility to enforce the minimum water supply watershed management requirements of its approved program, the Commission shall administer and enforce the minimum statewide requirements. The reduction of agricultural nonpoint source discharges shall be accomplished primarily through the Agriculture Cost Share Program for Nonpoint Source Pollution Control. Development and Adoption of Water Supply Watershed Classifications and Management Requirements. - The Commission shall adopt rules for the classification of water supply watersheds and that establish minimum statewide water supply watershed protection requirements applicable to each classification to protect surface water supplies by (i) controlling development density, (ii) providing for performance-based alternatives to development density controls that are based on sound engineering principles, or (iii) a combination of both (i) and (ii). The Commission may designate water supply watersheds or portions thereof as critical water supply watersheds and impose management requirements that are more stringent than the minimum statewide water supply watershed management requirements. The Commission may adopt rules that require that any permit issued by a local government for a development or construction activity conducted by that local government within a designated water supply watershed be approved by the Department prior to issuance. Any variance from the minimum statewide water supply watershed management requirements must be approved by the Commission prior to the issuance of a permit by a local government. Except as provided by G.S. 153A-347 and G.S. 160A-392, the power to implement this section with respect to development or construction activities that are conducted by State agencies is vested exclusively in the Commission. Classification of Water Supply Watersheds. - The Commission shall assign to each water supply watershed in the State the appropriate classification with the applicable minimum management requirements. The Commission may reclassify water supply watersheds as necessary to protect future water supplies or improve protection at existing water supplies. A local government shall not be required to submit a revised water supply watershed protection program to the Commission earlier than 270 days after it receives notice of a reclassification from the Commission. Mandatory Local Programs. - The Department shall assist local governments to develop water supply watershed protection programs that comply with this section. Local government compliance programs shall include an implementing local ordinance and shall provide for maintenance, inspection, and enforcement procedures. As part of its assistance to local governments, the Commission shall approve and make available a model local water supply watershed management and protection ordinance. The model management and protection ordinance adopted by the Commission shall, at a minimum, include as options (i) controlling development density, (ii) providing for performance-based alternatives to development density controls that are based on sound engineering principles, and (iii) a combination of both (i) and (ii). Local governments shall administer and enforce the minimum management requirements. Every local government that has within its jurisdiction all or a portion of a water supply watershed shall submit a local water supply watershed management and protection ordinance to the Commission for approval. Local governments may adopt such ordinances pursuant to their general police power, power to regulate the subdivision of land, zoning power, or any combination of such powers. In adopting a local ordinance that imposes water supply watershed management requirements that are more stringent than those adopted by the Commission, a local government must comply with Article 6 of Chapter 160D of the General Statutes. This section shall not be construed to affect the validity of any local ordinance adopted for the protection of water supply watersheds prior to completion of the review of the ordinance by the Commission or prior to the assumption by the Commission of responsibility for a local water supply watershed protection program. Local governments may create or designate agencies to administer and enforce such programs. The Commission shall approve a local program only if it determines that the requirements of the program equal or exceed the minimum statewide water supply watershed management requirements adopted pursuant to this section. A local ordinance adopted to implement the minimum statewide water supply watershed management requirements applicable to agriculture and silviculture activities shall be no more restrictive than those adopted by the Commission. In adopting minimum statewide water supply watershed management requirements applicable to agriculture activities, the Commission shall consider the policy regarding agricultural nonpoint source discharges set out in subsection (a) of this section. The Commission may by rule designate another State agency to administer the minimum statewide water supply watershed management requirements applicable to agriculture and silviculture activities. If the Commission designates another State agency to administer the minimum statewide water supply watershed management requirements applicable to agriculture and silviculture activities, management requirements adopted by local governments shall not apply to such activities. A local government implementing a water supply watershed program shall allow an applicant to average development density on up to two noncontiguous properties for purposes of achieving compliance with the water supply watershed development standards if all of the following circumstances exist: The properties are within the same water supply watershed. If one of the properties is located in the critical area of the watershed, the critical area property shall not be developed beyond the applicable density requirements for its classification. Overall project density meets applicable density or stormwater control requirements under 15A NCAC 2B .0200. Vegetated buffers on both properties meet the minimum statewide water supply watershed protection requirements. Built upon areas are designed and located to minimize stormwater runoff impact to the receiving waters, minimize concentrated stormwater flow, maximize the use of sheet flow through vegetated areas, and maximize the flow length through vegetated areas. Areas of concentrated density development are located in upland areas and, to the maximum extent practicable, away from surface waters and drainageways. The property or portions of the properties that are not being developed will remain in a vegetated or natural state and will be managed by a homeowners' association as common area, conveyed to a local government as a park or greenway, or placed under a permanent conservation or farmland preservation easement unless it can be demonstrated that the local government can ensure long-term compliance through deed restrictions and an electronic permitting mechanism. A metes and bounds description of the areas to remain vegetated and limits on use shall be recorded on the subdivision plat, in homeowners' covenants, and on individual deed and shall be irrevocable. Development permitted under density averaging and meeting applicable low density requirements shall transport stormwater runoff by vegetated conveyances to the maximum extent practicable. A special use permit or other such permit or certificate shall be obtained from the local Watershed Review Board or Board of Adjustment to ensure that both properties considered together meet the standards of the watershed ordinance and that potential owners have record of how the watershed regulations were applied to the properties. Assumption of Local Programs. - The Commission shall assume responsibility for water supply watershed protection, within all or the affected portion of a water supply watershed, if a local government fails to adopt a program that meets the requirements of this section or whenever a local government fails to adequately administer and enforce the provisions of its program. The Commission shall not assume responsibility for an approved local water supply watershed protection program until it or its designee notifies the local government in writing by certified mail, return receipt requested, of local program deficiencies, recommendations for changes and improvements in the local program, and the deadline for compliance. The Commission shall allow a local government a minimum of 120 days to bring its program into compliance. The Commission shall order assumption of an approved local program if it finds that the local government has made no substantial progress toward compliance. The Commission may make such finding at any time between 120 days and 365 days after receipt of notice under this subsection by the local government, with no further notice. Proceedings to review such orders by the Commission shall be conducted by the superior court pursuant to Article 4 of Chapter 150B of the General Statutes based on the agency record submitted to the Commission by the Secretary. State Enforcement Authority. - The Commission may take any appropriate preventive or remedial enforcement action authorized by this Part against any person who violates any minimum statewide water supply watershed management requirement. Civil Penalties. - A local government that fails to adopt a local water supply watershed protection program as required by this section or willfully fails to administer or enforce the provisions of its program in substantial compliance with the minimum statewide water supply watershed management requirements shall be subject to a civil penalty pursuant to G.S. 143-215.6A(e). In any area of the State that is not covered by an approved local water supply watershed protection program, any person who violates or fails to act in accordance with any minimum statewide water supply watershed management requirement or more stringent management requirement adopted by the Commission for a critical water supply watershed established pursuant to this section shall be subject to a civil penalty as specified in G.S. 143-215.6A(a)(7). Planning Grants to Local Governments. - The Secretary may make annual grants to local governments for the purpose of assisting in the development of local water supply watershed protection programs. The Secretary shall develop and administer generally applicable criteria under which local governments may qualify for such assistance. Such criteria shall give priority to local governments that are not then administering zoning ordinances in affected water supply watershed areas. Every State agency shall act in a manner consistent with the policies and purposes of this section, and shall comply with the minimum statewide water supply watershed management requirements adopted by the Commission and with all water supply watershed management and protection ordinances adopted by local governments. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2 . History (1989, c. 426, s. 1; 1991, c. 342, s. 9; c. 471, s. 2; c. 579, s. 1; 1991 (Reg. Sess., 1992), c. 890, s. 14; 1998-215, s. 62; 2012-200, s. 7; 2019-111, s. 2.5(k); 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).) Management of Water Quality in the Jordan Watershed. - For provisions pertaining to water quality rule-making for the Jordan Watershed pursuant to Session Laws 2009-216, ss. 1 and 3-8, as amended by Session Laws 2009-484, ss. 6(b), (c), 7, and 8, see the note at G.S. 143-214.7 . Local Stormwater Management Programs under the Jordan Lake New Development Rule. - For definition of, implementation of, and additional rule-making authority related to New Development Rule 15A NCAC 02B.0265, see Session Laws 2012-200, s. 9(c)-(g), which is noted under this catchline under G.S. 143-214.7 . Jordan Lake Riparian Buffer Rules. - For provisions pertaining to the Jordan Lake Riparian Buffer Rules, see note for Session Laws 2013-395, s. 2(a), (b), under G.S. 143-214.20 . Delay Jordan Lake Rules and Jordan Lake Session Laws. - For provisions pertaining to Delay Jordan Lake Rules and Jordan Lake Session Laws, see editor's note to Session Laws 2013-395, s. 1(a), (b) under G.S. 143-214.7 and G.S. 143-215.1 . Editor's Note. - Session Laws 1989, c. 426, s. 7 provided: "This act shall not affect the validity of any local ordinance relating to watershed protection adopted prior to the effective date of this act [June 23, 1989]." Session Laws 1989, c. 426, s. 7.1 provided: "Nothing herein contained shall be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act." Session Laws 1995, c. 301, provides that, since certain water supply watersheds meet the standards of more than one classification under the water supply watershed protection program, the Environmental Management Commission shall reexamine, under G.S. 143-214.5 , the classification of any water supply watershed that was classified as a WS-III water supply watershed on March 1, 1995, and that meets certain other criteria; that reclassification of any such watershed shall reduce the land area affected; that any watershed that is reclassified as a WS-IV watershed shall not thereafter be reclassified to a more restrictive classification; and that if the Commission fails to reexamine the classification of and watershed that meets the criteria of this section by October 1, 1995, that watershed shall automatically be reclassified as WS-IV watershed on that date. Session Laws 2005-97, s. 1, provides: "The Environmental Management Commission shall initiate a rule-making proceeding no later than 1 September 2005 to adopt rules to reclassify the entire watersheds of all creeks that drain to the north shore of Fontana Lake between Eagle and Forney Creeks, including Eagle and Forney Creeks, as outstanding resource waters pursuant to G.S. 143-214.1 ." Session Laws 2005-97, s. 2, provides: "Pending the outcome of the rule-making proceeding required by Section 1 of this act, the minimum management strategies set out in 15A NCAC 2B.0225(c) shall apply to the watersheds described in Section 1 of this act." Session Laws 2011-394, s. 21, as amended by Session Laws 2013-413, s. 57(ff), provides: "In order to ensure the ongoing delivery of services by the nonpoint source pollution control programs of the Division of Forest Resources and the Division of Soil and Water Conservation, the Division of Water Resources in the Department of Environment and Natural Resources shall transfer Clean Water Act (CWA) Section 319 Nonpoint Source Management Program Base Grant funds to the Division of Forest Resources and Division of Soil and Water Conservation, where consistent with the federal grant program requirements, in an amount that is no less than the average annual amount of funding received by each of those two Divisions over the two most-recent fiscal bienniums. In the event that the level of Section 319 base grant funds received by the Department of Environment and Natural Resources by the United States Environmental Protection Agency is increased or decreased in any funding cycle, the level of funding received by the Division of Forest Resources and the Division of Soil and Water Conservation shall be adjusted proportionally. Section 319 Nonpoint Source Management Program Competitive Grant funds shall consider water quality benefit and be distributed in a fair and equitable manner based on the grant requirements and the benefit. The Division of Water Resources will establish a Workgroup of Nonpoint Source Agencies, including the Division of Forest Resources and the Division of Soil and Water Conservation, which will consider the competitive grant project proposals. The Workgroup will be given full input to the project funding decisions." Session Laws 2011-412, s. 5, as amended by Session Laws 2021-37, s. 1, provides: "Notwithstanding Section 5.1(b) of S.L. 1998-132, the Secretary of Environmental Quality shall grant a waiver to allow additional connections to a bond-funded waterline within an area designated as WS-I or the critical area of any area that has been designated as WS-II, WS-III, or WS-IV by the Environmental Management Commission pursuant to G.S. 143-214.5 , provided the design capacity and size of the existing bond-funded waterline can accommodate the additional connections and the purpose of the additional connection is for either of the following reasons: "(1) To address an existing threat to public health or water quality. "To provide water to a structure located on a lot zoned for residential use or mixed-use development. There is no requirement that the structure existed on the lot at the time of the construction of the bond-funded waterline." Session Laws 2017-211, s. 9(a)-(e), provides: "(a) Definitions. - 'Coastal Stormwater Rule' means 15A NCAC 02H.1019 (Coastal Counties) for purposes of this section and its implementation. "(b) Coastal Stormwater Rule. - Until the effective date of the revised permanent rule that the Environmental Management Commission is required to adopt pursuant to subsection (d) of this section, the Commission and the Department of Environmental Quality shall implement the Coastal Stormwater Rule, as provided in subsection (c) of this section. "(c) Implementation. - The Commission and the Department shall not require a State stormwater permit for a residential project unless the residential project would cumulatively add more than 10,000 square feet of built upon area. "(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Coastal Stormwater 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." Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), made the amendment of subsection (d) by Session Laws 2019-111, s. 2.5(k), effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that: "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-25, s. 51(a), (b), and (d), effective June 19, 2020, repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33(a), and provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of: "(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or "(2) July 1, 2021." Session Laws 2020-3, s. 5, is a severability clause. Effect of Amendments. - Session Laws 2012-200, s. 7, effective August 1, 2012, added subsection (d2). Session Laws 2019-111, s. 2.5(k), substituted "local government must comply with Article 6 of Chapter 160D of the General Statutes" for "county must comply with the notice provisions of G.S. 153A-343 and a municipality must comply with the notice of provisions of G.S. 160A-384" in the eighth sentence of subsection (d). For effective date and applicability, see editor's note. Legal Periodicals. - For comment, "Legal Analysis of the Constitutionality of the Water Supply Watershed Protection Act of 1989 and the Hyde Bill," see 29 Wake Forest L. Rev. 1279 (1994).