North Carolina § 143-215 - 31. Supervision over maintenance and operation of dams.

§ 143-215. 31. Supervision over maintenance and operation of dams.

The Commission shall have jurisdiction and supervision over the maintenance and operation of dams to safeguard life and property and to satisfy minimum streamflow requirements. The Commission may adopt standards for the maintenance and operation of dams as may be necessary for the purposes of this Part. The Commission may vary the standards applicable to various dams, giving due consideration to the minimum flow requirements of the stream, the type and location of the structure, the hazards to which it may be exposed, and the peril of life and property in the event of failure of a dam to perform its function. The owner of a dam classified by the Department as a high-hazard dam or an intermediate-hazard dam shall develop an Emergency Action Plan for the dam as provided in this subsection: The owner of the dam shall submit a proposed Emergency Action Plan for the dam within 90 days after the dam is classified as a high-hazard dam or an intermediate-hazard dam to the Department and the Department of Public Safety for their review and approval. The Department and the Department of Public Safety shall approve the Emergency Action Plan if they determine that it complies with the requirements of this subsection and will protect public health, safety, and welfare; the environment; and natural resources. The Emergency Action Plan shall include, at a minimum, all of the following: A description of potential emergency conditions that could occur at the dam, including security risks. A description of actions to be taken in response to an emergency condition at the dam. Emergency notification procedures to aid in warning and evacuations during an emergency condition at the dam. A downstream inundation map depicting areas affected by a dam failure and sudden release of the impoundment. A downstream inundation map prepared pursuant to this section does not require preparation by a licensed professional engineer or a person under the responsible charge of a licensed professional engineer unless the dam is associated with a coal combustion residuals surface impoundment, as defined by G.S. 130A-309.201. The owner of the dam shall update the Emergency Action Plan annually and shall submit it to the Department and the Department of Public Safety for their review and approval within one year of the prior approval. The Department shall provide a copy of the Emergency Action Plan to the regional offices of the Department that might respond to an emergency condition at the dam. The Department of Public Safety shall provide a copy of the Emergency Action Plan to all local emergency management agencies that might respond to an emergency condition at the dam. Information included in an Emergency Action Plan that constitutes sensitive public security information, as provided in G.S. 132-1.7, shall be maintained as confidential information and shall not be subject to disclosure under the Public Records Act. For purposes of this section, "sensitive public security information" shall include Critical Energy Infrastructure Information protected from disclosure under rules adopted by the Federal Energy Regulatory Commission in 18 C.F.R. § 388.112. The Department, consistent with rules adopted by the Commission, may impose any condition or requirement in orders and written approvals issued under this Part that is necessary to ensure that stream classifications, water quality standards, and aquatic habitat requirements are met and maintained, including conditions and requirements relating to the release or discharge of designated flows from dams, the location and design of water intakes and outlets, the amount and timing of the withdrawal of water from a reservoir, and the construction of submerged weirs or other devices intended to maintain minimum streamflows. The minimum streamflow in the length of the stream affected by a dam that is operated by a small power producer, as defined in G.S. 62-3(27a), that diverts water from 4,000 feet or less of the natural streambed and where the water is returned to the same stream shall be: The minimum average flow for a period of seven consecutive days that would have an average occurrence of once in 10 years in the absence of the dam, or ten percent (10%) of the average annual flow of the stream in the absence of the dam, whichever is less, if prior to 1 January 1995 the small power producer was either licensed by the Federal Energy Regulatory Commission or held a certificate of public convenience and necessity issued by the North Carolina Utilities Commission. The minimum average flow for a period of seven consecutive days that would have an average occurrence of once in 10 years in the absence of the dam, or ten percent (10%) of the average annual flow of the stream in the absence of the dam, whichever is greater, if subdivision (1) of this subsection does not apply. To protect the habitat of the Cape Fear Shiner and other aquatic species, 28 cubic feet per second for any dam that diverts water from 2,500 feet or more of the natural streambed of any stream on which six or more dams operated by small power producers were located on 1 January 1995, notwithstanding subdivisions (1) and (2) of this subsection. Subsection (c) of this section establishes the policy of this State with respect to minimum streamflows in the length of the stream affected by a dam that is operated by a small power producer, as defined in G.S. 62-3(27a), that diverts water from 4,000 feet or less of the natural streambed and where the water is returned to the same stream, whether the dam is subject to or exempt from this Part. In its comments and recommendations to the Federal Energy Regulatory Commission regarding the minimum streamflow in the length of the stream affected by a dam that is operated by a small power producer, as defined in G.S. 62-3(27a), that diverts water from 4,000 feet or less of the natural streambed and where the water is returned to the same stream, the Commission and the Department shall not advocate or recommend a minimum streamflow that exceeds the minimum streamflow that would be required under subsection (c) of this section. The minimum streamflow in the length of the stream affected by a dam to which subsections (c) and (d) of this section do not apply shall be established as provided in subsection (b) of this section. Subsections (c) and (d) of this section do not apply if the length of the stream affected: Receives a discharge of waste from a treatment works for which a permit is required under Part 1 of this Article; or Includes any part of a river or stream segment that: Is designated as a component of the State Natural and Scenic Rivers System by G.S. 143B-135.152 or G.S. 143B-135.154. Is designated as a component of the national Wild and Scenic Rivers System by 16 U.S.C. § 1273 and 1274. The Commission shall adopt rules that specify the minimum streamflow in the length of the stream affected. History (1967, c. 1068, s. 9; 1973, c. 1262, s. 23; 1987, c. 827, s. 154; 1993, c. 394, s. 6; c. 553, s. 80; 1995, c. 184, s. 1; c. 439, s. 1; 2014-122, s. 8(a); 2015-7, s. 9(a); 2015-241, s. 14.30(aaa); 2017-102, s. 21.) Editor's Note. - Session Laws 2014-122, s. 8(b), as amended by Session Laws 2015-7, s. 9(b), provides: "Notwithstanding G.S. 143-215.31 , as amended by Section 8(a) of this act, the owners of all high-hazard dams and intermediate-hazard dams associated with coal combustion residuals surface impoundments, as defined by G.S. 130A-309.201 , in operation on the effective date of this act shall submit their proposed Emergency Action Plans to the Department of Environment and Natural Resources and the Department of Public Safety no later than March 1, 2015. Notwithstanding G.S. 143-215.31 , as amended by Section 8(a) of this act, the owners of all high-hazard dams and intermediate-hazard dams not associated with coal combustion residuals surface impoundments, as defined by G.S. 130A-309.201 , in operation on the effective date of this act shall submit their proposed Emergency Action Plans to the Department of Environment and Natural Resources and the Department of Public Safety no later than December 31, 2015." This act became effective September 20, 2014. Session Laws 2014-122, s. 17, is a severability clause. Session Laws 2015-7, s. 9(c), provides: "The Department of Environment and Natural Resources [now Department of Environmental Quality] shall study whether, under certain circumstances, downstream inundation maps prepared pursuant to G.S. 143-215.31 should be prepared by a licensed professional engineer or a person under the responsible charge of a licensed professional engineer. The Department shall consult with the State Board of Examiners for Engineers and Surveyors in the conduct of this study. The Department shall report the results of this study to the Environmental Review Commission no later than March 31, 2016." Effect of Amendments. - Session Laws 2014-122, s. 8(a), effective September 20, 2014, added subsection (a1). Session Laws 2015-7, s.9(a), effective retroactively to September 20, 2014, added the last sentence in subdivision (a1)(2)d. Session Laws 2015-241, s. 14.30(aaa), effective July 1, 2015, substituted "G.S. 143B-135.152 or G.S. 143B-135.154 " for "G.S. 113A-35.1 or G.S. 113A-35.2 " in subdivision (e)(2)a. Session Laws 2017-102, s. 21, effective July 12, 2017, made a stylistic change in subsection (a1), and substituted "18 C.F.R. § 388.112" for "18 C.F.R. § 333.112" in subdivision (a1)(6).