§ 143-215.13. Declaration of capacity use areas. - North Carolina Statutes

§ 143‑215.13. Declaration of capacity use areas.

(a)        The Environmental Management Commission may declare anddelineate from time to time, and may modify, capacity use areas of the Statewhere it finds that the use of groundwater or surface water or both requirecoordination and limited regulation for protection of the interests and rightsof residents or property owners of such areas or of the public interest.

(b)        Within the meaning of this Part "a capacity usearea" is one where the Commission finds that the aggregate uses ofgroundwater or surface water, or both, in or affecting said area (i) havedeveloped or threatened to develop to a degree which requires coordination andregulation, or (ii) exceed or threaten to exceed, or otherwise threaten or impair,the renewal or replenishment of such waters or any part of them.

(c)        The Commission may declare and delineate capacity use areasin accordance with the following procedures:

(1)        Whenever the Commission believes that  a capacity usesituation exists or may be emerging in any area of the State, it may direct theDepartment to investigate and report to the Commission thereon.

(2)        In conducting its investigation the Department shallconsult  with all interested persons, groups and agencies; may retain consultants;and shall consider all factors relevant to the conservation and use of water inthe area, including established or pending water classifications under Part 1of this Article and the criteria for such classifications. Following itsinvestigation the Department shall render a written report to the Commission.This report shall indicate whether the water use problems of the area involvesurface waters, groundwaters or both and shall identify the Department'ssuggested boundaries for any capacity use area that may be proposed. It shallpresent such alternatives as the Department deems appropriate, includingactions by any agency or person which might preclude the need for additionalregulation at that time, and measures which might be employed limited to surfacewater or groundwater.

(3)        If the Commission finds, following its review of thedepartmental report (or thereafter following its evaluation of measures takenfalling short of regulation) that a capacity use area should be declared, itmay adopt a rule declaring said capacity use area. A rule declaring an area tobe a capacity use area shall delineate the boundaries of the area.

(4)        to (6) Repealed by Session Laws 1981, c. 585, s. 3.

(7)        Repealed by Session Laws 1987, c. 827, s. 167.

(d)        The Commission may conduct a public  hearing pursuant to theprovisions of this subsection in any area of the State, whether or not acapacity use area has been declared, when it has reason to believe that thewithdrawal of water from or the discharge of water pollutants to the waters insuch area is having an unreasonably adverse effect upon such waters. If theCommission determines that withdrawals of water from or discharge of waterpollutants to the waters within such area has resulted or probably will resultin a generalized condition of water depletion or water pollution within thearea to the extent that the availability or fitness for use of such water hasbeen impaired for existing or proposed uses and that injury to the publichealth, safety or welfare will result if increased or additional withdrawals ordischarges occur, the Commission may issue a rule:

(1)        Prohibiting any person withdrawing waters in excess of100,000  gallons per day from increasing the amount of the withdrawal abovesuch limit as may be established in the rule.

(2)        Prohibiting any person from constructing, installing oroperating any new well or withdrawal facilities having a capacity in excess ofa rate established in the rule; but such prohibition shall not extend to anynew well or facility having a capacity of less than 10,000 gallons per day.

(3)        Prohibiting any person discharging water pollutants to thewaters from increasing the rate of discharge in excess of the rate establishedin the rule.

(4)        Prohibiting any person from constructing, installing oroperating any facility that will or may result in the discharge of waterpollutants to the waters in excess of the rate established in the rule.

(5)        Prohibiting any agency or political subdivision of theState  from issuing any permit or similar document for the construction,installation, or operation of any new or existing facilities for withdrawingwater from or discharging water pollutants to the waters in such area in excessof the rates established in the rule.

The determination of the Commission shall be based upon the record ofthe public hearing and other information considered by the Commission in therule‑making proceeding. The rule shall describe the geographical area ofthe State affected thereby with particularity and shall provide that theprohibitions set forth therein shall continue pending a determination by theCommission that the generalized condition of water depletion or water pollutionwithin the area has ceased.

Upon issuance of any rule by the Commission pursuant to thissubsection, a certified copy of such rule shall be mailed by registered orcertified mail to the governing body of every county, city, town, and affectedpolitical subdivision lying, in whole or in part, within the area and to everyaffected or interested State and federal agency. A certified copy of the ruleshall be posted at the courthouse in every county lying, in whole or in part,within the area, and a notice setting forth the substantive provisions andeffective date of the rule shall be published once a week for two successiveweeks in a newspaper or newspapers having general circulation within the area.After publication of notice is completed, any person violating any provision ofsuch rule after the effective date thereof shall be subject to the penaltiesand proceedings set forth in G.S. 143‑215.17. (1967, c. 933, s. 3; 1973, c. 698, s. 14; c. 1262, s.23; 1977, c. 771, s. 4; 1981, c. 585, ss. 1‑4; 1987, c. 827, ss. 154,167.)