NORTH CAROLINA GENERAL ASSEMBLY

1967 SESSION

 

 

CHAPTER 933

SENATE BILL 465

 

 

AN ACT TO GRANT LIMITED REGULATORY AUTHORITY TO THE NORTH CAROLINA BOARD OF WATER RESOURCES REGARDING THE USE OF WATER AND FOR RELATED PURPOSES.

 

The General Assembly of North Carolina do enact:

 

Section 1.  Short Title. This Act shall be known and may be cited as the Water Use Act of 1967.

Sec. 2.  Declaration of Purpose. It is hereby declared that the general welfare and public interest require that the water resources of the State be put to beneficial use to the fullest extent to which they are capable, subject to reasonable regulation in order to conserve these resources and to provide and maintain conditions which are conducive to the development and use of water resources.

Sec. 3.  Declaration of Capacity Use Areas. (a) The Board may declare and delineate from time to time, and may modify, capacity use areas of the State where it finds that the use of ground water or surface water or both require coordination and limited regulation for protection of the interests and rights of residents or property owners of such areas or of the public interest.

(b)        Within the meaning of this Act "a capacity use area" is one where the Board finds that the aggregate uses of ground water or surface water, or both, in or affecting said area (1) have developed or threatened to develop to a degree which requires coordination and regulation, or (2) exceed or threaten to exceed, or otherwise threaten or impair, the renewal or replenishment of such waters or any part of them.

(c)        The Board may declare and delineate capacity use areas in accordance with the following procedures:

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

(2)        In conducting its investigation the Department shall consult with all interested persons, groups and agencies; may retain consultants; and shall consider all factors relevant to the conservation and use of water in the area, including established or pending water classifications under the Stream Sanitation law and the criteria for such classifications. Following its investigation the Department shall render a written report to the Board. This report shall include the Department's findings and recommendations as to whether the water use problems of the area involve surface waters, ground waters or both; whether effective measures can be employed limited to surface water or to ground water; and whether timely action by any agency or person may preclude the need for additional regulation at that time. The report shall also include such other findings and recommendations as the Department deems appropriate, including recommended boundaries for any capacity use area that may be proposed.

(3)        If the Board finds, following its review of the departmental report (or thereafter following its evaluation of measures taken falling short of regulation) that a capacity use area should be declared, it may adopt an order declaring said capacity use area. Prior to adopting such an order the Board shall give notice of its proposed action and shall conduct one or more public hearings with respect to such proposed action.

(4)        Such notice shall be given not less than 30 days before the date of such hearing and shall state the date, time, and place of hearing, the subject of the hearing, and the action which the Board proposes to take. The notice shall either include details of such proposed action, or where such proposed action is too lengthy for publication the notice shall specify that copies of such detailed proposed action shall be obtained on request from the office of the Board in sufficient quantity to satisfy the requests of all interested persons.

(5)        Any such notice shall be published at least once in one newspaper of general circulation circulated in each county of the State in which the water area affected is located, and a copy of such notice shall be mailed to each person on the mailing list required to be kept by the Board pursuant to the provisions of Section 5 of this Act.

(6)        Any person who desires to be heard at any such public hearing shall give notice thereof in writing to the Board on or before the first date set for the hearing. The Board is authorized to set reasonable time limits for the oral presentation of views by any one person at any such public hearing. The Board shall permit anyone who so desires to file a written argument or other statement with the Board in relation to any proposed action of the Board any time within 30 days following the conclusion of any public hearing or within any such additional time as the Board may allow by notice given as prescribed in this Section.

(7)        Upon completion of hearings and consideration of submitted evidence and arguments with respect to any proposed action by the Board pursuant to this paragraph, the Board shall adopt its final action with respect thereto and shall publish such final action as part of its official regulations. The Board is empowered to modify or revoke from time to time any final action previously taken by it pursuant to the provisions of this Section, any such modification or revocation, however, to be subject to the procedural requirements of this Act, including notice and hearing. If the Board finds and orders that a capacity use area shall be declared, its order shall include a delineation of the boundary of said area, and the Board shall instruct the Director of the Department to prepare proposed regulations consistent with the provisions of this Act and commensurate with the degree of control needed from among the classes of permissible regulations set forth in Section 4.

Sec. 4.  Regulations Within Capacity Use Areas: Scope and Procedures. (a) Following the declaration of a capacity use area by the Board, it shall prepare proposed regulations to be applied in said area, containing such of the following provisions as the Board finds appropriate concerning the use of surface waters or ground waters or both:

(1)        Provisions requiring water users within the area to submit reports not more frequently than at 30-day intervals concerning quantity of water used or withdrawn, sources of water and the nature of the use thereof.

(2)        With respect to surface waters, ground waters, or both: provisions concerning the timing of withdrawals; provisions to protect against or abate salt water encroachment; provisions to protect against or abate unreasonable adverse effects on other water users within the area, including but not limited to adverse effects on public use.

(3)        With respect to ground waters: provisions concerning well spacing controls; and provisions establishing a range of prescribed pumping levels (elevations below which water may not be pumped) or maximum pumping rates, or both, in wells or for the aquifer or for any part thereof based on the capacities and characteristics of the aquifer.

(4)        Such other provisions not inconsistent with this Act as the Board finds necessary to implement the purposes of this Act.

(b)        The Board shall conduct one or more hearings upon the proposed regulations, upon notice, in accordance with the requirements of paragraphs (4) - (6) of Section 3(c) of this Act. Upon completion of the hearings and consideration of submitted evidence and arguments with respect to any proposed regulation, the Board shall adopt its final action with respect thereto, and shall publish such final action as part of its official regulations. The Board is empowered to modify or revoke from time to time any final action previously taken by it pursuant to the provisions of this Section, any such modifications or revocations, however, to be subject to the procedural requirements of this Act, including notice and hearing.

Sec. 5.  Permits for Water Use Within Capacity Use Areas: Procedures. (a) In areas declared by the Board to be capacity use areas no person shall (after the expiration of such period, not in excess of six months, as the Board may designate) withdraw, obtain, or utilize surface waters or ground waters or both, as the case may be, in excess of 100,000 gallons per day for any purpose unless such person shall first obtain a permit therefor from the Board.

(b)        When sufficient evidence is provided by the applicant that the water withdrawn or used from a stream or the ground is not consumptively used, a permit therefor shall be issued by the Board without a hearing and without the conditions provided in subsection (c) of this Section. Applications for such permits shall set forth such facts as the Board shall deem necessary to enable it to establish and maintain adequate records of all water uses within the capacity use area.

(c)        In all cases in which sufficient evidence of a non‑consumptive use is not presented the Board shall notify each person required by this Act to secure a permit of the Board's proposed action concerning such permit, and shall transmit with such notice a copy of any permit it proposes to issue to such persons, which permit will become final unless a request for a hearing is made within 15 days from the date of service of such notice. The Board shall have the power: (1) to grant such permit with conditions as the Board deems necessary to implement the regulations adopted pursuant to Section 4 of the Act; (2) to grant any temporary permit for such period of time as the Board shall specify where conditions make such temporary permit essential, even though the action allowed by such permit may not be consistent with the Board's regulations applicable to such capacity use area; (3) to modify or revoke any permit upon not less than 60 days' written notice to any person affected; and (4) to deny such permit if the application therefor or the effect of the water use proposed or described therein upon the water resources of the area is found to be contrary to public interest. Any water user wishing to contest the proposed action shall be entitled to a hearing upon request therefor.

(d)        In any proceeding pursuant to this Section or Section 6 the Board shall give notice with respect to all steps of the proceeding only to each person directly affected by such proceeding who shall be made a party thereto. In all proceedings pursuant to Sections 3 or 4 the Board shall give notice as provided by these Sections, and it shall also give notice of all its official acts (such as the adoption of regulations or rules of procedure) which have, or are intended to have, general application and effect, to all persons on its mailing list on the date when such action is taken. It shall be the duty of the Board to keep such a mailing list on which it shall record the name and address of each person who requests listing thereon, together with the date of receipt of such request. Any person may, by written request to the Board ask to be permanently recorded on such mailing list.

(e)        All notices which are required to be given by the Board or by any party to a proceeding shall be given by registered or certified mail to all persons entitled thereto, including the Board. The date of receipt or refusal for such registered or certified mail shall be the date when such notice is deemed to have been given. Notice by the Board may be given to any person upon whom a summons may be served in accordance with the provisions of law covering civil actions in the Superior Courts of this State. The Board may prescribe the form and content of any particular notice.

(f)         The following provisions shall be applicable in connection with hearings pursuant to this Act:

(1)        Any hearing held pursuant to this Section or Section 6, whether called at the instance of the Board or of any person, shall be held upon not less than 30 days' written notice given by the Board to any person who is a party to the proceedings with respect to which such hearing is to be held, unless a shorter notice is agreed upon by all such parties.

(2)        All hearings under this Act shall be before the Board, or before one or more of its own members or before one or more of its own qualified employees, and shall be open to the public. Any member or employee of the Board to whom a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record to the Board for decision.

(3)        A full and complete record of all proceedings at any hearing under this Act shall be taken by a reporter appointed by the Board or by other method approved by the Attorney General. Any party to a proceeding shall be entitled to a copy of such record upon the payment of the reasonable cost thereof as determined by the Board.

(4)        The Board and its duly authorized agents shall follow generally the procedures applicable in civil actions in the Superior Court insofar as practicable, including rules and procedures with regard to the taking and use of depositions, the making and use of stipulations, and the entering into of agreed settlements and consent orders.

(5)        The Board, or the duly authorized agent of such Board, may administer oaths and may issue subpoenas for the attendance of witnesses and the production of books, papers, and other documents belonging to the said person.

(6)        Subpoenas issued by the Board, in connection with any hearing under this Act shall be directed to any officer authorized by law to serve process, and the further procedures and rules of law applicable with respect thereto shall be prescribed in connection with subpoenas to the same extent as if issued by a court of record. In case of a refusal to obey a subpoena issued by the Board, application may be made to the Superior Court of the appropriate county for enforcement thereof.

(7)        The burden of proof at any hearing under this Act shall be upon the person or the Board, as the case may be, at whose instance the hearing is being held.

(8)        No decision or order of the Board shall be made in any proceeding unless the same is supported by competent, material and substantial evidence upon consideration of the whole record.

(9)        Following any hearing, the Board shall afford the parties thereto a reasonable opportunity to submit within 30 days or within such additional time as prescribed by the Board, proposed findings of fact and conclusions of law and any brief in connection therewith.

(10)      All orders and decisions of the Board shall set forth separately the Board's findings of fact and conclusions of law and shall, wherever necessary, cite the appropriate provision of law or other source of authority on which any action or decision of the Board is based.

(11)      The Board shall have the authority to adopt a seal which shall be the seal of said Board and which shall be judicially noticed by the courts of the State. Any document, proceeding, order, decree, special order, rule, regulation, rule of procedure or any other official act or records of the Board or its minutes may be certified by the Director or Assistant Director of the Department under his hand and the seal of the Board and when so certified shall be received in evidence in all actions or proceedings in the courts of the State without further proof of the identity of the same if such records are competent, relevant and material in any such action or proceeding. The Board shall have the right to take judicial notice of all studies, reports, statistical data or any other official reports or records of the federal government or of any sister state and all such records, reports and data may be placed in evidence by the Board or by any other person or interested party where material, relevant and competent.

(g)        Any person against whom any final order or decision has been made except where no appeal is allowed as provided by Section 143-215.2(j) shall have a right of appeal to the Superior Court of Wake County or of the county where the order or decision is effective within 30 days after such order or decision has become final. Upon such appeal the Board shall send a certified transcript of all testimony and exhibits introduced before the Board, the order or decision, and the notice of appeal to the Superior Court. The matter on appeal shall be heard and determined de novo on the transcript certified to the court and any evidence or additional evidence as shall be competent under rules of evidence then applicable to trials in the Superior Court without a jury upon any question of fact; provided, the court shall allow any party to introduce evidence or additional evidence upon any question of fact. At the conclusion of the hearing, the judge shall make findings of fact and enter his decision thereto. Appeals from the judgment and orders of the Superior Court shall lie to the Supreme Court. No bond shall be required of the Board to the Supreme Court.

(1)        Upon appeal filed by any party, the Board shall forthwith furnish each party to the proceeding with a copy of the certified transcript and exhibits filed with the Board. A reasonable charge shall be paid the Board for said copies.

(2)        Within 15 days after receipt of copy of certified transcript and exhibits, any party may file with the court exceptions to the accuracy or omissions of any evidence or exhibits included in or excluded from said transcript.

(h)        In adopting any regulations pursuant to the provisions of Section 4 of this Act, and in considering permit applications, revocations or modifications under this Section, the Board shall consider:

(1)        the number of persons using an aquifer or stream and the object, extent and necessity of their respective withdrawals or uses;

(2)        the nature and size of the stream or aquifer;

(3)        the physical and chemical nature of any impairment of the aquifer or stream, adversely affecting its availability or fitness for other water uses (including public use);

(4)        the probable severity and duration of such impairment under foreseeable conditions;

(5)        the injury to public health, safety or welfare which would result if such impairment were not prevented or abated;

(6)        the kinds of businesses or activities to which the various uses are related;

(7)        the importance and necessity of the uses claimed by permit applicants (under this Section), or of the water uses of the area (under Section 4), and the extent of any injury or detriment caused or expected to be caused to other water uses (including public use);

(8)        diversion from or reduction of flows in other water courses or aquifers; and

(9)        any other relevant factors.

Sec. 6.  Permits for Water Use Within Capacity Use Areas: Duration, Transfer, Reporting, Measurement, Present Use, Fees and Penalties. No permit under Section 5 shall be issued for a longer period than the longest of the following: (i) 10 years, or (ii) the duration of the existence of a capacity use area, or (iii) the period found by the Board to be necessary for reasonable amortization of the applicant's water withdrawal and water using facilities. Permits may be renewed following their expiration upon compliance with the provisions of Section 5 of this Act.

(b)        Permits shall not be transferred except with the approval of the Board.

(c)        Every person in a capacity use area who is required by this Act to secure a permit shall file with the Board in the manner prescribed by the Board a certified statement of quantities of water used and withdrawn, sources of water, and the nature of the use thereof not more frequently than 30-day intervals. Such statements shall be filed on forms furnished by the Board within 90 days after the adoption of an order by the Board declaring a capacity use area. Water users in a capacity use area not required to secure a permit shall comply with procedures established to protect and manage the water resources of the area. Such procedures shall be adapted to the specific needs of the area, shall be within the provisions of this and other North Carolina water resource Acts, and shall be adopted after public hearing in the area. The requirements embodied in the two preceding sentences shall not apply to individual domestic water use.

(d)        If any person who is required to secure a permit under this Act is unable to furnish accurate information concerning amounts of water being withdrawn or used, or if there is evidence that his certified statement is false or inaccurate or that he is withdrawing or using a larger quantity of water or under different conditions than has been authorized by the Board, the Board shall have the authority to require such person to install water meters, or some other more economical means for measuring water use acceptable to the Board. In determining the amount of water being withdrawn or used by a permit holder or applicant the Board may use the rated capacity of his pumps, the rated capacity of his cooling system, data furnished by the applicant, or the standards or methods employed by the U.S. Geological Survey in determining such quantities or by any other accepted method.

(e)        In any case where a permit applicant can prove to the Board's satisfaction that the applicant was withdrawing or using water prior to the date of declaration of a capacity use area, the Board shall take into consideration the extent to which such prior use or withdrawal was reasonably necessary in the judgment of the Board to meet its needs, and shall grant a permit which shall meet those reasonable needs. Provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use.

(f)         The Board shall also take into consideration in the granting of any permit the prior investments of any person in lands, and plans for the usage of water in connection with such lands which plans have been submitted to the Board within a reasonable time after the effective date of this Act. Provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use.

(g)        It is the intention of the General Assembly that if the provisions of subsection (e) or subsection (f) of this Section are held invalid as a grant of an exclusive or separate emolument or privilege, within the meaning of Article 1, Section 7 of the North Carolina Constitution, the remainder of this Act shall be given effect without the invalid provision or provisions.

(h)        Pending the issuance or denial of a permit pursuant to subsection (e) or (f) of this Section, the applicant may continue the same withdrawal or use which existed prior to the date of declaration of the capacity use area.

Sec. 7.  Violations. (a) Penalties for violations. Any person who shall be adjudged to have violated any provision of this Act shall be guilty of a misdemeanor and shall be liable to a penalty of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each violation. In addition, if any person is adjudged to have committed such violation wilfully, the court may determine that each day during which such violation continued constitutes a separate violation subject to the foregoing penalty.

(b)        In addition, upon violation of any of the provisions of this Act, or the regulations of the Board hereunder, the Director of the Department may, either before or after the institution of proceedings for the collection of the penalty imposed by this Act for such violation, institute a civil action in the Superior Court in the name of the State upon relation of the Director of the Department for injunctive relief to restrain the violation and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Act for any violation of the same.

Sec. 8.  Map or Description of Boundaries of Capacity Use Areas. (a) The Board in designating and the Department in recommending the boundaries of any capacity use area may define such boundaries by showing them on a map or drawings, by a written description, or by any combination thereof, to be designated appropriately and filed permanently with the Department. Alterations in these lines shall be indicated by appropriate entries upon or additions to such map or description. Such entries shall be made under the direction of the Director of the Department. Photographic, typed or other copies of such map or description, certified by the Director, shall be admitted in evidence in all courts and shall have the same force and effect as would the original map or description. If the boundaries are changed pursuant to other provisions of this Act, the Department may provide for the redrawing of any such map. A redrawn map shall supersede for all purposes the earlier map or all maps which it is designated to replace.

(b)        The Department shall file with the Secretary of State a certified copy of the map, drawings, description or combination thereof, showing the boundaries of any capacity use area designated by the Board; and a certified copy of any redrawn or altered map or drawing, and of any amendments or additions to written descriptions, showing alterations to said boundaries. The filings required by this subsection shall constitute compliance with the requirements of Article 18 of Chapter 143 of the General Statutes.

Sec. 9.  Rights of Investigation, Entry, Access and Inspection. The Board shall have the right to conduct such investigations as may reasonably be necessary to carry out its duties prescribed in this Act, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition, withdrawal or use of any waters, investigating water sources, or investigating the installation or operation of any well or surface water withdrawal or use facility, and to require written statements or the filing of reports under oath, with respect to pertinent questions relating to the installation or operation of any well or surface water withdrawal or use facility; provided, that no person shall be required to disclose any secret formula, processes or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person shall refuse entry or access to any authorized representative of the Board who requests entry for purposes of a lawful inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties consistent with the provisions of this Act.

Sec. 10.  Rules and Regulations. The Board may adopt and modify from time to time rules and regulations consistent with the provisions of this Act to implement the provisions of this Act. All such rules and regulations, and modifications thereof, shall be filed with the Secretary of State as required by Article 18 of Chapter 143 of the General Statutes.

Sec. 11.  Definitions. Unless the context otherwise requires, the following terms as used in this Act are defined as follows:

(1)        "Department" means the Department of Water Resources, or its successor.

(2)        "Board" means the Board of Water Resources or its successor.

(3)        "Person" shall mean any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or any other state or country.

(4)        "Waters" shall mean any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway or any other body or accumulation of water, surface or underground, public or private, natural or artificial, which is contained within, flows through, or borders upon this State or any portion thereof, including those portions of the Atlantic Ocean over which this State has jurisdiction.

(5)        "Area of the State" means any municipality or county or portion thereof or other substantial geographical area of the State as may be designated by the Board.

(6)        "Consumptive use" means any use of water withdrawn from a stream or the ground other than a "non-consumptive use", as defined in this Act.

(7)        "Non-consumptive use" means (a) the use of water withdrawn from a stream in such a manner that it is returned to the stream without substantial diminution in quantity at or near the point from which it was taken; or, if the user owns both sides of the stream at the point of withdrawal, the water is returned to the stream upstream of the next property below the point of diversion on either side of the stream; (b) the use of water withdrawn from a ground water system or aquifer in such a manner that it is returned to the ground water system or aquifer from which it was withdrawn without substantial diminution in quantity or substantial impairment in quality at or near the point from which it was withdrawn; (c) provided, however, that (in determining whether a use of ground water is nonconsumptive) the Board may take into consideration whether any material injury or detriment to other water users of the area by reason of reduction of water pressure in the aquifer or system has not been adequately compensated by the permit applicant who caused or substantially contributed to such injury or detriment.

Sec. 12.  Law of Riparian Rights Not Changed. Nothing contained in this Act shall change or modify existing common or statutory law with respect to the relative rights of riparian owners concerning the use of surface water in this State.

Sec. 13.  Codification. The various Sections of this Act shall be given appropriate numbers and codified by the Attorney General in Article 21 of Chapter 143 of the General Statutes of North Carolina. In the event that the 1967 General Assembly enacts more than one law concerning water resources, which several laws contain identical or substantially identical provisions concerning any matter—including without limitation, notice and hearing provisions, definitions and penalties—the Attorney General in codifying said laws is authorized in each such instance to combine said duplicating provisions in a single Section, subsection or paragraph, as may be appropriate.

Sec. 14.  Severability. If any provision of this Act or its application to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provisions or applications, and to this end the provisions of this Act are declared to be severable.

Sec. 15.  All laws and clauses of laws in conflict with this Act are hereby repealed.

Sec. 16.  Effective Date. This Act shall become effective upon its ratification.

In the General Assembly read three times and ratified, this the 27th day of June, 1967.