§ 143-214.5. Water supply watershed protection. - North Carolina Statutes

§ 143‑214.5.  Watersupply watershed protection.

(a)        Policy Statement. – This section provides for a cooperativeprogram of water supply watershed management and protection to be administeredby local governments consistent with minimum statewide management requirementsestablished by the Commission. If a local government fails to adopt a watersupply watershed protection program or does not adequately carry out itsresponsibility to enforce the minimum water supply watershed managementrequirements of its approved program, the Commission shall administer andenforce the minimum statewide requirements. The reduction of agriculturalnonpoint source discharges shall be accomplished primarily through theAgriculture Cost Share Program for Nonpoint Source Pollution Control.

(b)        Development and Adoption of Water Supply WatershedClassifications and Management Requirements. – The Commission shall adopt rulesfor the classification of water supply watersheds and that establish minimumstatewide water supply watershed protection requirements applicable to eachclassification to protect surface water supplies by (i) controlling developmentdensity, (ii) providing for performance‑based alternatives to developmentdensity controls that are based on sound engineering principles, or (iii) acombination of both (i) and (ii).  The Commission may designate water supplywatersheds or portions thereof as critical water supply watersheds and imposemanagement requirements that are more stringent than the minimum statewidewater supply watershed management requirements.  The Commission may adopt rulesthat require that any permit issued by a local government for a development orconstruction activity conducted by that local government within a designatedwater supply watershed be approved by the Department prior to issuance.  Anyvariance from the minimum statewide water supply watershed managementrequirements must be approved by the Commission prior to the issuance of apermit by a local government.  Except as provided by G.S. 153A‑347 andG.S. 160A‑392, the power to implement this section with respect todevelopment or construction activities that are conducted by State agencies isvested exclusively in the Commission.

(c)        Classification of Water Supply Watersheds. – The Commissionshall assign to each water supply watershed in the State the appropriateclassification with the applicable minimum management requirements. TheCommission may reclassify water supply watersheds as necessary to protectfuture water supplies or improve protection at existing water supplies. A localgovernment shall not be required to submit a revised water supply watershedprotection program to the Commission earlier than 270 days after it receivesnotice of a reclassification from the Commission.

(d)        Mandatory Local Programs. – The Department shall assistlocal governments to develop water supply watershed protection programs thatcomply with this section. Local government compliance programs shall include animplementing local ordinance and shall provide for maintenance, inspection, andenforcement procedures. As part of its assistance to local governments, theCommission shall approve and make available a model local water supplywatershed management and protection ordinance. The model management and protectionordinance adopted by the Commission shall, at a minimum, include as options (i)controlling development density, (ii) providing for performance‑basedalternatives to development density controls that are based on soundengineering principles, and (iii) a combination of both (i) and (ii).  Localgovernments shall administer and enforce the minimum management requirements.Every local government that has within its jurisdiction all or a portion of awater supply watershed shall submit a local water supply watershed managementand protection ordinance to the Commission for approval.  Local governments mayadopt such ordinances pursuant to their general police power, power to regulatethe subdivision of land, zoning power, or any combination of such powers.  Inadopting a local ordinance that imposes water supply watershed managementrequirements that are more stringent than those adopted by the Commission, acounty must comply with the notice provisions of G.S. 153A‑343 and amunicipality must comply with the notice provisions of G.S. 160A‑384.This section shall not be construed to affect the validity of any localordinance adopted for the protection of water supply watersheds prior tocompletion of the review of the ordinance by the Commission or prior to theassumption by the Commission of responsibility for a local water supplywatershed protection program. Local governments may create or designateagencies to administer and enforce such programs. The Commission shall approvea local program only if it determines that the requirements of the programequal or exceed the minimum statewide water supply watershed managementrequirements adopted pursuant to this section.

(d1)      A local ordinance adopted to implement the minimum statewidewater supply watershed management requirements applicable to agriculture andsilviculture activities shall be no more restrictive than those adopted by theCommission.  In adopting minimum statewide water supply watershed managementrequirements applicable to agriculture activities, the Commission shallconsider the policy regarding agricultural nonpoint source discharges set outin subsection (a) of this section.  The Commission may by rule designateanother State agency to administer the minimum statewide water supply watershedmanagement requirements applicable to agriculture and silviculture activities. If the Commission designates another State agency to administer the minimumstatewide water supply watershed management requirements applicable toagriculture and silviculture activities, management requirements adopted bylocal governments shall not apply to such activities.

(e)        Assumption of Local Programs. – The Commission shall assumeresponsibility for water supply watershed protection, within all or theaffected portion of a water supply watershed, if a local government fails toadopt a program that meets the requirements of this section or whenever a localgovernment fails to adequately administer and enforce the provisions of itsprogram. The Commission shall not assume responsibility for an approved localwater supply watershed protection program until it or its designee notifies thelocal government in writing by certified mail, return receipt requested, oflocal program deficiencies, recommendations for changes and improvements in thelocal program, and the deadline for compliance. The Commission shall allow alocal government a minimum of 120 days to bring its program into compliance.The Commission shall order assumption of an approved local program if it findsthat the local government has made no substantial progress toward compliance.The Commission may make such finding at any time between 120 days and 365 daysafter receipt of notice under this subsection by the local government, with nofurther notice. Proceedings to review such orders by the Commission shall beconducted by the superior court pursuant to Article 4 of Chapter 150B of theGeneral Statutes based on the agency record submitted to the Commission by theSecretary.

(f)         State Enforcement Authority. – The Commission may take anyappropriate preventive or remedial enforcement action authorized by this Partagainst any person who violates any minimum statewide water supply watershedmanagement requirement.

(g)        Civil Penalties. – A local government that fails to adopt alocal water supply watershed protection program as required by this section orwillfully fails to administer or enforce the provisions of its program insubstantial compliance with the minimum statewide water supply watershedmanagement 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 anapproved local water supply watershed protection program, any person whoviolates or fails to act in accordance with any minimum statewide water supplywatershed management requirement or more stringent management requirementadopted by the Commission for a critical water supply watershed establishedpursuant to this section shall be subject to a civil penalty as specified inG.S. 143‑215.6A(a)(7).

The clear proceeds of civil penalties provided for in this sectionshall be remitted to the Civil Penalty and Forfeiture Fund in accordance withG.S. 115C‑457.2.

(h)        Planning Grants to Local Governments. – The Secretary maymake annual grants to local governments for the purpose of assisting in thedevelopment of local water supply watershed protection programs. The Secretaryshall develop and administer generally applicable criteria under which localgovernments may qualify for such assistance. Such criteria shall give priorityto local governments that are not then administering zoning ordinances inaffected water supply watershed areas.

(i)         Every State agency shall act in a manner consistent withthe policies and purposes of this section, and shall comply with the minimumstatewide water supply watershed management requirements adopted by theCommission and with all water supply watershed management and protectionordinances adopted by local governments. (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.)