North Carolina § 143-215 - 73F. Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund.

§ 143-215. 73F. Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund.

Fund Established. - The Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund is established as a special revenue fund. The Fund consists of fees credited to it under G.S. 75A-3 and G.S. 75A-38, taxes credited to it under G.S. 105-449.126, and funds contributed by non-State entities. Uses of Fund. - Revenue in the Fund may only be used for the following purposes: To provide the State's share of the costs associated with any dredging project designed to keep shallow draft navigation channels located in State waters or waters of the state located within lakes navigable and safe. For aquatic weed control projects in waters of the State under Article 15 of Chapter 113A of the General Statutes. Funding for aquatic weed control projects is limited to one million dollars ($1,000,000) in each fiscal year. For the compensation of a beach and inlet management project manager with the Division of Coastal Management of the Department of Environmental Quality for the purpose of overseeing all activities related to beach and inlet management in the State. Funding for the position is limited to ninety-nine thousand dollars ($99,000) in each fiscal year. To provide funding for siting and acquisition of dredged disposal easement sites associated with the maintenance of the Atlantic Intracoastal Waterway between the border with the state of South Carolina and the border with the Commonwealth of Virginia, under a Memorandum of Agreement between the State and the federal government. Cost-Share. - Any project funded by revenue from the Fund must be cost-shared with non-State dollars as follows: The cost-share for dredging projects located, in whole or part, in a development tier one area, as defined in G.S. 143B-437.08, shall be at least one non-State dollar for every three dollars from the Fund. The cost-share for dredging projects not located, in whole or part, in a development tier one area shall be at least one non-State dollar for every two dollars from the Fund. The cost-share for an aquatic weed control project shall be at least one non-State dollar for every dollar from the Fund. The cost-share for an aquatic weed control project located within a component of the State Parks System shall be provided by the Division of Parks and Recreation of the Department of Natural and Cultural Resources. The Division of Parks and Recreation may use funds allocated to the State Parks System for capital projects under G.S. 143B-135.56 for the cost-share. The cost-share for the dredging of the access canal around the Roanoke Island Festival Park shall be paid from the Historic Roanoke Island Fund established by G.S. 143B-131.8A. Cost-Share Exemption for DOT Ferry Channel Projects. - Notwithstanding the cost-share requirements of subdivision (1) of subsection (c) of this section, no cost-share shall be required for dredging projects located, in whole or part, in a development tier one area for a ferry channel maintained by the North Carolina Department of Transportation. Return of Non-State Entity Funds. - Non-State entities that contribute to the Fund for a particular project or group of projects may make a written request to the Secretary that the contribution be returned if the contribution has not been spent or encumbered within two years of receipt of the contribution by the Fund. If the written request is made prior to the funds being spent or encumbered, the Secretary shall return the funds to the entity within 30 days after the later of (i) receiving the request or (ii) the expiration of the two-year period described by this subsection. Definitions. - For purposes of this section, "shallow draft navigation channel" means (i) a waterway connection with a maximum depth of 16 feet between the Atlantic Ocean and a bay or the Atlantic Intracoastal Waterway, (ii) a river entrance to the Atlantic Ocean through which tidal and other currents flow, or (iii) other interior coastal waterways. The term includes the Atlantic Intracoastal Waterway and its side channels, Beaufort Harbor, Bogue Inlet, Carolina Beach Inlet, the channel from Back Sound to Lookout Back, channels connected to federal navigation channels, Lockwoods Folly River, Manteo/Shallowbag Bay, including Oregon Inlet, Masonboro Inlet, New River, New Topsail Inlet, Rodanthe, Hatteras Inlet, Rollinson, Shallotte River, Silver Lake Harbor, and the waterway connecting Pamlico Sound and Beaufort Harbor. Report. - The Department shall report annually no later than October 1 regarding projects funded under this section to the Fiscal Research Division and the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources. The report shall include project type (dredging or weed control), project location, brief project description, entity receiving the funding, and amount of funding provided. History (2013-360, s. 14.22(h); 2014-100, s. 14.19(a); 2015-241, ss. 14.6(a), 14.30(bbb); 2016-94, ss. 14.12(a), 14.19; 2017-190, s. 3.2(b); 2017-197, s. 4.11; 2018-5, s. 13.6; 2021-108, s. 2.) Cross References. - As to distribution of part of Highway Fund allocation to Shallow Draft Navigation Channel and Aquatic Weed Fund, see G.S. 105-449.126 . Editor's Note. - Session Laws 2013-360, s. 14.22(i), provides: "Nothing in this section shall affect the validity, term, or cost of any certificate of number or certificate of title issued prior to October 1, 2013." Session Laws 2013-360, s. 14.22(j), as amended by Session Laws 2020-74, s. 11(j), and as amended by Session Laws 2020-78, s. 7.2(j), provides: "This section authorizes a Long Term Dredging Memorandum of Agreement with the U.S. Army Corps of Engineers which may last beyond the current fiscal biennium and which shall provide for all of the following: "(1) Prioritization of projects through joint consultation with the State, applicable units of local government, and the U.S. Army Corps of Engineers. "(2) Compliance with G.S. 143-215.73 F. Funds in the Shallow Draft Navigation Channel Dredging Fund shall be used in accordance with that section. "(3) Annual reporting by the Department on the use of funds provided to the U.S. Army Corps of Engineers under the Long Term Dredging Memorandum of Agreement. These reports shall be made to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Fiscal Research Division, and the Office of State Budget and Management and shall include all of the following: "a. A list of all projects commenced. "b. The estimated cost of each project. "c. The date that work on each project commenced or is expected to commence. "d. The date that work on each project was completed or is expected to be completed. "e. The actual cost of each project." Session Laws 2013-360, s. 14.22(k), provides: "The Department of Environment and Natural Resources may use available funds for the 2013-2014 fiscal year and the 2014-2015 fiscal year in the Shallow Draft Navigation Channel and Lake Dredging Fund established in G.S. 143-215.73 F, as enacted by subsection (h) of this section, to provide the State's share of costs associated with projects that comply with that section. These funds are hereby appropriated for that purpose, but the Department of Environment and Natural Resources shall approve a project before it is eligible to receive any funds under this section." Session Laws 2013-360, s. 14.22( l ), made Part 8B effective October 1, 2013. 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 2015-241, s. 14.6(b), provides: "Notwithstanding G.S. 143-215.73 F, the funds available in the Shallow Draft Navigation Channel Dredging and Lake Maintenance Fund shall be reserved for all of the following purposes: "(1) The sum of three million dollars ($3,000,000) in each fiscal year of the 2015-2017 biennium shall be reserved for Oregon Inlet dredging needs. "(2) The sum of one hundred fifty thousand dollars ($150,000) shall be reserved to reimburse the Department of Administration for its costs associated with exploring options for acquiring Oregon Inlet and the adjacent real property, including, but not limited to, surveys and appraisals, legal research, and studies related to sand management, engineering proposals, and larval transport. "(3) The sum of five hundred thousand dollars ($500,000) shall be reserved to reimburse the Department of Administration for its costs associated with ongoing negotiations pertaining to the implementation of Section 14.7(g) of S.L. 2014-100. Upon completion of the actions defined in Sections 14.7(a) through (f) of S.L. 2014-100 by the Secretary of Administration and the federal government, Section 14.7(g) of S.L. 2014-100 is repealed. The Department of Administration shall use the report submitted by the Department of Transportation pursuant to Section 14.7(h) of S.L. 2014-100 and consult with the Department of Transportation when prioritizing condemnation of all existing and future transportation corridors on the Outer Banks, a right retained by the State and recorded in a deed executed on August 7, 1958, when these lands were conveyed to the federal government. "(4) The sum of two hundred fifty thousand dollars ($250,000) shall be reserved for use by the Department of Environment and Natural Resources [now Department of Environmental Quality] to update the Beach and Inlet Management Plan (Plan). The Department may enter into a sole-source contract of up to two hundred fifty thousand dollars ($250,000) with the firm that developed the initial Plan to have the firm update the Plan. The updated Plan shall include a recommended schedule for ongoing inlet maintenance. No later than December 1, 2016, the Department shall report to the Environmental Review Commission on the updated Plan, including a four-year cycle of regularly scheduled maintenance projects for beaches and inlets that currently undergo (or are expected to undergo) beach fill or dredging work. "If State funds reserved for the purposes listed above in a fiscal year are not spent or encumbered by June 30 of that fiscal year, the State funds shall be unreserved and made available for any of the uses set out in G.S. 143-215.73 F." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2016-94, s. 14.12(a), effective July 1, 2016, rewrote the Part 8B heading, which formerly read "Shallow Draft Navigation Channel and Lake Dredging Fund." Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'" Session Laws 2016-94, s. 39.7, is a severability clause. Session Laws 2017-57, s. 13.8(a), (b), provide: "(a) The Division of Water Resources of the Department of Environmental Quality shall study the feasibility and cost-effectiveness of the acquisition by the State of North Carolina of one or more dredges. The study shall include all of the following: "(1) The capital and annual operating costs of one or more dredges and funding sources for those costs. In studying funding sources, the Division shall not consider the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund established by G.S. 143-215.73 F. "(2) The expected level of utilization of one or more State-owned dredges and opportunities for defraying operating expenses by the sale of dredging services to other states, the federal government, and private parties. "(3) Options for minimizing costs and increasing cost-effectiveness, including an evaluation of public-private partnerships and shared ownership arrangements with neighboring states or the United States Army Corps of Engineers. "(b) The Department shall provide its study and any recommendations for fiscal or legislative actions no later than April 1, 2018, to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, the chairs of the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the Fiscal Research Division." Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Session Laws 2017-190, s. 3.2(a), provides: "(a) The Division of Water Resources of the Department of Environmental Quality and the State Property Office are authorized to negotiate with appropriate agencies of the federal government an agreement for the State to assume responsibility for acquiring dredged material easement sites appropriate for maintenance dredging of the Atlantic Intracoastal Waterway between the border with the state of South Carolina and the border with the Commonwealth of Virginia in exchange for the reduction in size and possible change in location of dredged material disposal easement sites currently held by the federal government. The agreement shall provide for the federal government to relinquish certain dredged material disposal easements that are excess to maintenance project needs in exchange for the acquisition and furnishing to the federal government other easements that are sited and permitted by the Division of Coastal Management and acquired by the State Property Office under its powers of condemnation or otherwise using such funds as may be appropriated by the General Assembly from the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund established under Part 8B of Article 21 of Chapter 143 of the General Statutes for that purpose." Session Laws 2017-197, s. 4.11, was contingent upon Senate Bill 257, 2017 Regular Session, becoming law. Senate Bill 257 was enacted as Session Laws 2017-57. G.S. 143B-131.8 A, referred to in subdivision (c)(4), was recodified as G.S. 143-202.4 by Session Laws 2017-57, s. 14.8(c). Session Laws 2018-5, s. 13.7(a)-(h), provides: "(a) The General Assembly finds that the maintenance of the State's shallow draft navigation channels in a manner that keeps those channels navigable and safe and minimizes their closure or degradation is a vital public purpose and a proper governmental function and that declines in federal funding and dredging activity have significantly and adversely impacted the ability of the federal government to maintain these channels in a timely manner. The resulting deterioration in these channels damages the significant portion of the economy of the State's coastal regions that is dependent on the use of the navigation channels by watercraft. Therefore, it is the policy of the State to support and, when necessary to meet the public purposes set forth in this subsection, to supplement federal maintenance of these navigation channels. For purposes of this section, "shallow draft navigation channel" shall have the definition set forth in G.S. 143-215.73 F(e). "(b) Notwithstanding subsection (b) of G.S. 143-215.73 F, fifteen million dollars ($15,000,000) from the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund shall be allocated to Dare County (Local Partner) to provide a forgivable loan to a private partner for the purchase of a shallow draft hopper dredge to be used under the direction of the Oregon Inlet Task Force in accordance with the work plan negotiated under subdivision (2) of subsection (e) of this section for maintenance of shallow draft navigation channels located throughout the State. For purposes of this section, Oregon Inlet Task Force refers to the advisory body initially appointed by the Dare County Commission at its January 22, 2013, meeting, as subsequently revised by the Commission. The Local Partner shall delegate by resolution any of its delegable duties under this section to the Task Force. The Task Force shall coordinate the use of the dredge funded by this section to ensure that dredging projects for all shallow draft navigation channels located in waters of the State are completed in an expeditious and timely manner. "(c) The selection of a private partner shall be subject only to the requirements set forth in this subsection and shall be exempt from Articles 3 and 8 of Chapter 143 of the General Statutes. By August 1, 2018, the Local Partner shall issue a Request for Proposals (RFP) with required guidelines and eligibility criteria to private entities for the forgivable loan funded by this section. An eligible entity responding to the RFP shall submit to the Local Partner an application within 30 days in the manner and accompanied by such information as the Local Partner may require. The Local Partner shall select a private partner no later than 60 days after the deadline for submission of responses to the RFP. "(d) The forgivable loan agreement between the Local Partner and the private entity receiving the loan (the Loan Parties) shall (i) be for a term of 10 years, renewable for additional 5 year terms at the agreement of the Loan Parties, and (ii) include, at a minimum, the following: "(1) The dredge for which funding is provided under this section shall be used primarily for maintenance of shallow draft navigation channels located in the State under the direction of the Task Force and based on the work plan as determined in the Memorandum of Agreement described in subdivision (e)(2) of this section. "(2) To ensure that public funds are used only to carry out public purposes, the private entity shall provide, as service repayment on the forgivable loan, dredging of the State's shallow draft navigation channels at a cost-savings between the usual and customary rate for dredging services of this type (as determined by the Local Partner in consultation with the United States Army Corps of Engineers and the Department of Environmental Quality) and a lower rate specified for the dredging in the loan agreement. The agreement shall account for cost-savings that total fifteen million dollars ($15,000,000) over the term of the agreement. The Local Partner shall annually forgive that portion of the loan and any interest accrued on the loan based on the provision of reduced cost dredging services. "(3) At the option of the Loan Parties, the agreement may provide for use of the dredge to undertake supplemental dredging projects within the State at the usual and customary rate charged for such projects if the Local Partner determines that the dredge has capacity to undertake additional work. The Loan Parties shall prioritize supplemental dredging projects for local governments over supplemental dredging projects for private entities. Supplemental dredging projects authorized by this subdivision shall not be credited toward repayment of the forgivable loan under subdivision (2) of this subsection. "(4) If the private entity does not provide cost-savings on dredging services at the State's shallow draft navigation channels in an amount equal to fifteen million dollars ($15,000,000) over the term of the Agreement, the owner of the dredge shall repay the Local Partner within 90 days of the termination date of the Agreement in an amount equal to the remaining service repayment obligation plus any interest accrued on the remaining obligation. The Local Partner shall forward the funds repaid under this subdivision to the Office of State Budget and Management to be credited to the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund. "(e) The Department of Environmental Quality, the Local Partner, and the private entity shall do all of the following: "(1) Plan and allocate responsibilities for any permits, authorizations, or certifications necessary for operation of the dredge for the purposes described in this section. The Local Partner and the private entity shall structure ownership and operation of the dredge in a manner that allows work to be conducted to the maximum extent possible under general permits or through amendments to existing individual permits in order to minimize the expense and delay associated with permitting of dredge operations. "(2) Upon request of the Local Partner, negotiate a Memorandum of Agreement or an amendment to the existing Memorandum of Agreement between the Department and the United States Army Corps of Engineers to incorporate in-kind contributions through the activities of the dredge acquired under this section into existing work plans for maintenance work on shallow draft navigation channels of the State. "(f) The Local Partner shall perform all of the administrative functions necessary to implement this section, including implementing the forgivable loan agreement, loan monitoring, establishing service repayment conditions, including necessary documentation for the determination of the cost of dredging services, enforcing the agreement, and all other functions necessary for the execution and enforcement of the agreement. "(g) The State shall incur no liability for and nothing in this section is intended to waive any sovereign immunity the State may have at common law for any damages or loss associated with the activities authorized by this section. Furthermore, nothing in this section is intended to waive or abrogate the Local Partner's immunity from civil liability in tort. "(h) The Local Partner shall annually report no later than October 1 on dredging activities undertaken during the prior fiscal year to the Department of Environmental Quality, the Fiscal Research Division, and the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources. The report shall also include detailed information about any default on the terms of the forgivable loan and resulting recoupment or repayment of the State's investment during the fiscal year. The reporting requirement imposed by this subsection shall expire upon the filing of the report covering the fiscal year in which the term of the forgivable loan agreement ends." Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'" Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year." Session Laws 2018-5, s. 39.7, is a severability clause. Session Laws 2018-136, 3rd Ex. Sess., s. 1.1, provides: "This act shall be known as '2018 Hurricane Florence Disaster Recovery Act.'" Session Laws 2018-136, 3rd Ex. Sess., s. 2.4, provides: "Notwithstanding G.S. 143-215.73 F, the Department of Environmental Quality shall transfer the sum of two million dollars ($2,000,000) for the 2018-2019 fiscal year from the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund to the Office of State Budget and Management to be credited to the Hurricane Florence Disaster Recovery Reserve." Session Laws 2020-44, s. 1(b), provides: "Notwithstanding G.S. 143-215.73 F and no later than August 15, 2020, the Department of Environmental Quality shall transfer the sum of three million seven hundred eighty-three thousand nine hundred twelve dollars ($3,783,912) in nonrecurring funds from the cash balance in the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund (Budget Code: 24300; Fund Code: 2182) to the Department of Agriculture and Consumer Services, Food and Drug Division (Budget Code: 13700; Fund Code: 1100). The funds transferred in this subsection are appropriated for the 2020-2021 fiscal year and shall be used for equipment, moving costs, and other nonrecurring expenses associated with the opening of the Department's Agricultural Sciences Center." Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium." Session Laws 2020-78, s. 22.3, is a severability clause. Effect of Amendments. - Session Laws 2014-100, s. 14.19(a), effective July 1, 2014, substituted "Dredging and Lake Maintenance Fund" for "and Lake Dredging Fund" in the section heading and in the first sentence; substituted "safe, or for aquatic weed control projects in waters of the State located within lakes under Article 15 of Chapter 113A of the General Statutes" for "safe" at the end of the second sentence; added the proviso at the end of the third sentence; and added the fourth sentence. Session Laws 2015-241, s. 14.6(a), effective July 1, 2015, rewrote the section. Session Laws 2015-241, s. 14.30(bbb), effective July 1, 2015, in (c)(3), substituted "Department of Natural and Cultural Resources" for "Department of Environment and Natural Resources" and substituted "G.S. 143B-135.56" for "G.S. 113-44.15" [in subdivision (c)(3)]. Session Laws 2016-94, s. 14.12(a), effective July 1, 2016, substituted "Aquatic Weed" for "Lake Maintenance" in the section catchline and subsection (a); deleted "located within lakes" following "waters of the State" in subdivision (b)(2); in subsection (c), in subdivision (3), substituted "an aquatic weed control" for "a lake maintenance" in the first sentence, and substituted "an aquatic weed control project" for "a lake" in the second sentence, and added subdivision (4); and added subsection (f). Session Laws 2016-94, s. 14.19, effective July 1, 2016, added subdivision (b)(3). Session Laws 2017-190, s. 3.2(b), effective July 27, 2017, added subdivision (b)(4). Session Laws 2017-197, s. 4.11, effective July 1, 2017, substituted "shall" for "may" in subdivision (c)(4). Session Laws 2018-5, s. 13.6, effective July 1, 2018, substituted "one million dollars ($1,000,000)" for "five hundred thousand dollars ($500,00)" in subdivision (b)(2). PART 8C. DEEP DRAFT NAVIGATION CHANNEL DREDGING AND MAINTENANCE FUND.