§ 143-215.22L. Regulation of surface water transfers.
§ 143‑215.22L. Regulation of surface water transfers.
(a) CertificateRequired. No person, without first obtaining a certificate from theCommission, may:
(1) Initiate a transferof 2,000,000 gallons of water or more per day from one river basin to another.
(2) Increase the amountof an existing transfer of water from one river basin to another by twenty‑fivepercent (25%) or more above the average daily amount transferred during theyear ending 1 July 1993 if the total transfer including the increase is2,000,000 gallons or more per day.
(3) Increase an existingtransfer of water from one river basin to another above the amount approved bythe Commission in a certificate issued under G.S. 162A‑7 prior to 1 July1993.
(b) Exception. Notwithstandingthe provisions of subsection (a) of this section, a certificate shall not berequired to transfer water from one river basin to another up to the fullcapacity of a facility to transfer water from one basin to another if thefacility was in existence or under construction on 1 July 1993.
(c) Notice of Intent toFile a Petition. An applicant shall prepare a notice of intent to file apetition that includes a nontechnical description of the applicant's requestand an identification of the proposed water source. Within 90 days after theapplicant files a notice of intent to file a petition, the applicant shall holdat least one public meeting in the source river basin upstream from theproposed point of withdrawal, at least one public meeting in the source river basindownstream from the proposed point of withdrawal, and at least one publicmeeting in the receiving river basin to provide information to interestedparties and the public regarding the nature and extent of the proposed transferand to receive comment on the scope of the environmental documents. Writtennotice of the public meetings shall be provided at least 30 days before thepublic meetings. At the time the applicant gives notice of the public meetings,the applicant shall request comment on the alternatives and issues that shouldbe addressed in the environmental documents required by this section. Theapplicant shall accept written comment on the scope of the environmentaldocuments for a minimum of 30 days following the last public meeting. Notice ofthe public meetings and opportunity to comment on the scope of theenvironmental documents shall be provided as follows:
(1) By publishing noticein the North Carolina Register.
(2) By publishing noticein a newspaper of general circulation in:
a. Each county in thisState located in whole or in part of the area of the source river basinupstream from the proposed point of withdrawal.
b. Each city or countylocated in a state located in whole or in part of the surface drainage basinarea of the source river basin that also falls within, in whole or in part, thearea denoted by one of the following eight‑digit cataloging units asorganized by the United States Geological Survey:
03050105(Broad River: NC and SC);
03050106(Broad River: SC);
03050107(Broad River: SC);
03050108(Broad River: SC);
05050001(New River: NC and VA);
05050002(New River: VA and WV);
03050101(Catawba River: NC and SC);
03050103(Catawba River: NC and SC);
03050104(Catawba River: SC);
03010203(Chowan River: NC and VA);
03010204(Chowan River: NC and VA);
06010105(French Broad River: NC and TN);
06010106(French Broad River: NC and TN);
06010107(French Broad River: TN);
06010108(French Broad River: NC and TN);
06020001(Hiwassee River: AL, GA, TN);
06020002(Hiwassee River: GA, NC, TN);
06010201(Little Tennessee River: TN);
06010202(Little Tennessee River: TN, GA, and NC);
06010204(Little Tennessee River: NC and TN);
03060101(Savannah River: NC and SC);
03060102(Savannah River: GA, NC, and SC);
03060103(Savannah River: GA and SC);
03060104(Savannah River: GA);
03060105(Savannah River: GA);
03040203(Lumber River: NC and SC);
03040204(Lumber River: NC and SC);
03040206(Lumber River: NC and SC);
03040207(Lumber River: NC and SC);
03010205(Albemarle Sound: NC and VA);
06020003(Ocoee River: GA, NC, and TN);
03010101(Roanoke River: VA);
03010102(Roanoke River: NC and VA);
03010103(Roanoke River: NC and VA);
03010104(Roanoke River: NC and VA);
03010105(Roanoke River: VA);
03010106(Roanoke River: NC and VA);
06010102(Watauga River: TN and VA);
06010103(Watauga River: NC and TN);
03040101(Yadkin River: VA and NC);
03040104(Yadkin River: NC and SC);
03040105(Yadkin River: NC and SC);
03040201(Yadkin River: NC and SC);
03040202(Yadkin River: NC and SC).
c. Each county in thisState located in whole or in part of the area of the source river basindownstream from the proposed point of withdrawal.
d. Any area in theState in a river basin for which the source river basin has been identified asa future source of water in a local water supply plan prepared pursuant to G.S.143‑355(l).
e. Each county in theState located in whole or in part of the receiving river basin.
(3) By giving notice byfirst‑class mail or electronic mail to each of the following:
a. The board of commissionersof each county in this State or the governing body of any county or city thatis politically independent of a county in any state that is located entirely orpartially within the source river basin of the proposed transfer and that alsofalls within, in whole or in part, the area denoted by one of the eight‑digitcataloging units listed in sub‑subdivision b. of subdivision (2) of thissubsection.
b. The board ofcommissioners of each county in this State or the governing body of any countyor city that is politically independent of a county in any state that islocated entirely or partially within the receiving river basin of the proposedtransfer and that also falls within, in whole or in part, the area denoted byone of the eight‑digit cataloging units listed in sub‑subdivisionb. of subdivision (2) of this subsection.
c. The governing bodyof any public water supply system that withdraws water upstream or downstreamfrom the withdrawal point of the proposed transfer.
d. If any portion ofthe source or receiving river basins is located in another state, all statewater management or use agencies, environmental protection agencies, and theoffice of the governor in that state upstream or downstream from the withdrawalpoint of the proposed transfer.
e. All persons who haveregistered a water withdrawal or transfer from the proposed source river basinunder this Part or under similar law in an another state.
f. All persons whohold a certificate for a transfer of water from the proposed source river basinunder this Part or under similar law in an another state.
g. All persons who holda National Pollutant Discharge Elimination System (NPDES) wastewater dischargepermit for a discharge of 100,000 gallons per day or more upstream ordownstream from the proposed point of withdrawal.
h. To any other personwho submits to the applicant a written request to receive all notices relatingto the petition.
(d) EnvironmentalDocuments. The definitions set out in G.S. 113A‑9 apply to thissection. The Department shall conduct a study of the environmental impacts ofany proposed transfer of water for which a certificate is required under thissection. The study shall meet all of the requirements set forth in G.S. 113A‑4and rules adopted pursuant to G.S. 113A‑4. An environmental assessmentshall be prepared for any petition for a certificate under this section. Thedetermination of whether an environmental impact statement shall also berequired shall be made in accordance with the provisions of Article 1 of Chapter113A of the General Statutes; except that an environmental impact statementshall be prepared for every proposed transfer of water from one major riverbasin to another for which a certificate is required under this section. Theapplicant who petitions the Commission for a certificate under this sectionshall pay the cost of special studies necessary to comply with Article 1 ofChapter 113A of the General Statutes. An environmental impact statementprepared pursuant to this subsection shall include all of the following:
(1) A comprehensiveanalysis of the impacts that would occur in the source river basin and thereceiving river basin if the petition for a certificate is granted.
(2) An evaluation ofalternatives to the proposed interbasin transfer, including water supplysources that do not require an interbasin transfer and use of waterconservation measures.
(3) A description ofmeasures to mitigate any adverse impacts that may arise from the proposedinterbasin transfer.
(e) Public Hearing onthe Draft Environmental Document. The Commission shall hold a public hearingon the draft environmental document for a proposed interbasin transfer aftergiving at least 30 days' written notice of the hearing in the EnvironmentalBulletin and as provided in subdivisions (2) and (3) of subsection (c) of thissection. The notice shall indicate where a copy of the environmental documentcan be reviewed and the procedure to be followed by anyone wishing to submitwritten comments and questions on the environmental document. The Commissionshall prepare a record of all comments and written responses to questions posedin writing. The record shall include complete copies of scientific or technicalcomments related to the potential impact of the interbasin transfer. TheCommission shall accept written comment on the draft environmental documentsfor a minimum of 30 days following the last public hearing.
(f) Determination ofAdequacy of Environmental Document. The Commission shall not act on anypetition for an interbasin transfer until the Commission has determined thatthe environmental document is complete and adequate. A decision on the adequacyof the environmental document is subject to review in a contested case on thedecision of the Commission to issue or deny a certificate under this section.
(g) Petition. Anapplicant for a certificate shall petition the Commission for the certificate.The petition shall be in writing and shall include all of the following:
(1) A description of thefacilities to be used to transfer the water, including the location andcapacity of water intakes, pumps, pipelines, and other facilities.
(2) A description of allthe proposed consumptive and nonconsumptive uses of the water to betransferred.
(3) A description of thewater quality of the source river and receiving river, including information onaquatic habitat for rare, threatened, and endangered species; in‑streamflow data for segments of the source and receiving rivers that may be affectedby the transfer; and any waters that are impaired pursuant to section 303(d) ofthe federal Clean Water Act (33 U.S.C. § 1313(d)).
(4) A description of thewater conservation measures used by the applicant at the time of the petitionand any additional water conservation measures that the applicant willimplement if the certificate is granted.
(5) A description of allsources of water within the receiving river basin, including surface waterimpoundments, groundwater wells, reinjection storage, and purchase of waterfrom another source within the river basin, that is a practicable alternativeto the proposed transfer that would meet the applicant's water supply needs.The description of water sources shall include sources available at the time ofthe petition for a certificate and any planned or potential water sources.
(6) A description ofwater transfers and withdrawals registered under G.S. 143‑215.22H orincluded in a local water supply plan prepared pursuant to G.S. 143‑355(l)from the source river basin, including transfers and withdrawals at the time ofthe petition for a certificate and any planned or reasonably foreseeabletransfers or withdrawals by a public water system with service area locatedwithin the source river basin.
(7) A demonstration thatthe proposed transfer, if added to all other transfers and withdrawals requiredto be registered under G.S. 143‑215.22H or included in any local watersupply plan prepared by a public water system with service area located withinthe source basin pursuant to G.S. 143‑355(l) from the source river basinat the time of the petition for a certificate, would not reduce the amount ofwater available for use in the source river basin to a degree that would impairexisting uses, pursuant to the antidegradation policy set out in 40 Code ofFederal Regulation § 131.12 (Antidegradation Policy)(1 July 2006 Edition) andthe statewide antidegradation policy adopted pursuant thereto, or existing andplanned consumptive and nonconsumptive uses of the water in the source riverbasin. If the proposed transfer would impact a reservoir within the sourceriver basin, the demonstration must include a finding that the transfer wouldnot result in a water level in the reservoir that is inadequate to supportexisting uses of the reservoir, including recreational uses.
(8) The applicant'sfuture water supply needs and the present and reasonably foreseeable futurewater supply needs for public water systems with service area located withinthe source river basin. The analysis of future water supply needs shall includeagricultural, recreational, and industrial uses, and electric power generation.Local water supply plans prepared pursuant to G.S. 143‑355(l) for watersystems with service area located within the source river basin shall be usedto evaluate the projected future water needs in the source river basin thatwill be met by public water systems.
(9) The applicant'swater supply plan prepared pursuant to G.S. 143‑355(l). If theapplicant's water supply plan is more than two years old at the time of thepetition, then the applicant shall include with the petition an updated watersupply plan.
(10) Any other informationdeemed necessary by the Commission for review of the proposed water transfer.
(h) SettlementDiscussions. Upon the request of the applicant, any interested party, or theDepartment, or upon its own motion, the Commission may appoint a mediationofficer. The mediation officer may be a member of the Commission, an employeeof the Department, or a neutral third party but shall not be a hearing officerunder subsections (e) or (j) of this section. The mediation officer shall makea reasonable effort to initiate settlement discussions between the applicantand all other interested parties. Evidence of statements made and conduct thatoccurs in a settlement discussion conducted under this subsection, whetherattributable to a party, a mediation officer, or other person shall not besubject to discovery and shall be inadmissible in any subsequent proceeding onthe petition for a certificate. The Commission may adopt rules to govern theconduct of the mediation process.
(i) DraftDetermination. Within 90 days after the Commission determines that theenvironmental document prepared in accordance with subsection (d) of thissection is adequate or the applicant submits its petition for a certificate,whichever occurs later, the Commission shall issue a draft determination onwhether to grant the certificate. The draft determination shall be based on thecriteria set out in this section and shall include the conditions andlimitations, findings of fact, and conclusions of law that would be required ina final determination. Notice of the draft determination shall be given asprovided in subsection (c) of this section.
(j) Public Hearing onthe Draft Determination. Within 60 days of the issuance of the draftdetermination as provided in subsection (i) of this section, the Commissionshall hold public hearings on the draft determination. At least one hearingshall be held in the affected area of the source river basin, and at least onehearing shall be held in the affected area of the receiving river basin. Indetermining whether more than one public hearing should be held within eitherthe source or receiving river basins, the Commission shall consider the differingor conflicting interests that may exist within the river basins, including theinterests of both upstream and downstream parties potentially affected by theproposed transfer. The public hearings shall be conducted by one or morehearing officers appointed by the Chair of the Commission. The hearing officersmay be members of the Commission or employees of the Department. The Commissionshall give at least 30 days' written notice of the public hearing as providedin subsection (c) of this section. The Commission shall accept written commenton the draft determination for a minimum of 30 days following the last publichearing. The Commission shall prepare a record of all comments and writtenresponses to questions posed in writing. The record shall include completecopies of scientific or technical comments related to the potential impact ofthe interbasin transfer.
(k) FinalDetermination: Factors to be Considered. In determining whether a certificatemay be issued for the transfer, the Commission shall specifically consider eachof the following items and state in writing its findings of fact andconclusions of law with regard to each item:
(1) The necessity andreasonableness of the amount of surface water proposed to be transferred andits proposed uses.
(2) The present andreasonably foreseeable future detrimental effects on the source river basin,including present and future effects on public, industrial, economic,recreational, and agricultural water supply needs, wastewater assimilation,water quality, fish and wildlife habitat, electric power generation,navigation, and recreation. Local water supply plans for public water systemswith service area located within the source river basin prepared pursuant toG.S. 143‑355(l) shall be used to evaluate the projected future waterneeds in the source river basin that will be met by public water systems.Information on projected future water needs for public water systems withservice area located within the source river basin that is more recent than thelocal water supply plans may be used if the Commission finds the information tobe reliable. The determination shall include a specific finding as to measuresthat are necessary or advisable to mitigate or avoid detrimental impacts on thesource river basin.
(3) The cumulativeeffect on the source major river basin of any water transfer or consumptivewater use that, at the time the Commission considers the petition for acertificate is occurring, is authorized under this section, or is projected inany local water supply plan for public water systems with service area locatedwithin the source river basin that has been submitted to the Department inaccordance with G.S. 143‑355(l).
(4) The present andreasonably foreseeable future beneficial and detrimental effects on thereceiving river basin, including present and future effects on public,industrial, economic, recreational, and agricultural water supply needs,wastewater assimilation, water quality, fish and wildlife habitat, electricpower generation, navigation, and recreation. Local water supply plans preparedpursuant to G.S. 143‑355(l) that affect the receiving river basin shallbe used to evaluate the projected future water needs in the receiving riverbasin that will be met by public water systems. Information on projected futurewater needs that is more recent than the local water supply plans may be usedif the Commission finds the information to be reliable. The determination shallinclude a specific finding as to measures that are necessary or advisable tomitigate or avoid detrimental impacts on the receiving river basin.
(5) The availability ofreasonable alternatives to the proposed transfer, including the potentialcapacity of alternative sources of water, the potential of each alternative toreduce the amount of or avoid the proposed transfer, probable costs, andenvironmental impacts. In considering alternatives, the Commission is notlimited to consideration of alternatives that have been proposed, studied, orconsidered by the applicant. The determination shall include a specific findingas to why the applicant's need for water cannot be satisfied by alternativeswithin the receiving basin, including unused capacity under a transfer forwhich a certificate is in effect or that is otherwise authorized by law at thetime the applicant submits the petition. The determination shall consider theextent to which access to potential sources of surface water or groundwaterwithin the receiving river basin is no longer available due to depletion, contamination,or the declaration of a capacity use area under Part 2 of Article 21 of Chapter143 of the General Statutes. The determination shall consider the feasibilityof the applicant's purchase of water from other water suppliers within thereceiving basin and of the transfer of water from another sub‑basinwithin the receiving major river basin. Except in circumstances of technical oreconomic infeasibility or adverse environmental impact, the Commission'sdetermination as to reasonable alternatives shall give preference toalternatives that would involve a transfer from one sub‑basin to anotherwithin the major receiving river basin over alternatives that would involve atransfer from one major river basin to another major river basin.
(6) If applicable to theproposed project, the applicant's present and proposed use of impoundmentstorage capacity to store water during high‑flow periods for use duringlow‑flow periods and the applicant's right of withdrawal under G.S. 143‑215.44through G.S. 143‑215.50.
(7) If the water to bewithdrawn or transferred is stored in a multipurpose reservoir constructed bythe United States Army Corps of Engineers, the purposes and water storageallocations established for the reservoir at the time the reservoir wasauthorized by the Congress of the United States.
(8) Whether the servicearea of the applicant is located in both the source river basin and thereceiving river basin.
(9) Any other facts andcircumstances that are reasonably necessary to carry out the purposes of thisPart.
(l) FinalDetermination: Information to be Considered. In determining whether acertificate may be issued for the transfer, the Commission shall consider allof the following sources of information:
(1) The petition.
(2) The environmentaldocument prepared pursuant to subsection (d) of this section.
(3) All oral and writtencomment and all accompanying materials or evidence submitted pursuant tosubsections (e) and (j) of this section.
(4) Informationdeveloped by or available to the Department on the water quality of the sourceriver basin and the receiving river basin, including waters that are identifiedas impaired pursuant to section 303(d) of the federal Clean Water Act (33U.S.C. § 1313(d)), that are subject to a total maximum daily load (TMDL) limitunder subsections (d) and (e) of section 303 of the federal Clean Water Act, orthat would have their assimilative capacity impaired if the certificate isissued.
(5) Any otherinformation that the Commission determines to be relevant and useful.
(m) Final Determination:Burden and Standard of Proof; Specific Findings. The Commission shall grant acertificate for a water transfer if the Commission finds that the applicant hasestablished by a preponderance of the evidence all of the following:
(1) The benefits of theproposed transfer outweigh the detriments of the proposed transfer. In makingthis determination, the Commission shall be guided by the approvedenvironmental document and the policy set out in subsection (t) of thissection.
(2) The detriments havebeen or will be mitigated to the maximum degree practicable.
(3) The amount of thetransfer does not exceed the amount of the projected shortfall under theapplicant's water supply plan after first taking into account all other sourcesof water that are available to the applicant.
(4) There are noreasonable alternatives to the proposed transfer.
(n) FinalDetermination: Certificate Conditions and Limitations. The Commission maygrant the certificate in whole or in part, or deny the certificate. TheCommission may impose any conditions or limitations on a certificate that theCommission finds necessary to achieve the purposes of this Part including alimit on the period for which the certificate is valid. The conditions andlimitations shall include any mitigation measures proposed by the applicant tominimize any detrimental effects within the source and receiving river basins.In addition, the certificate shall require all of the following conditions andlimitations:
(1) A water conservationplan that specifies the water conservation measures that will be implemented bythe applicant in the receiving river basin to ensure the efficient use of thetransferred water. Except in circumstances of technical or economicinfeasibility or adverse environmental impact, the water conservation planshall provide for the mandatory implementation of water conservation measuresby the applicant that equal or exceed the most stringent water conservationplan implemented by a community water system, as defined in G.S. 143‑355(l),that withdraws water from the source river basin.
(2) A drought managementplan that specifies how the transfer shall be managed to protect the sourceriver basin during drought conditions or other emergencies that occur within thesource river basin. Except in circumstances of technical or economicinfeasibility or adverse environmental impact, this drought management planshall include mandatory reductions in the permitted amount of the transferbased on the severity and duration of a drought occurring within the sourceriver basin and shall provide for the mandatory implementation of a droughtmanagement plan by the applicant that equals or exceeds the most stringentwater conservation plan implemented by a community water system, as defined inG.S. 143‑355(l), that withdraws water from the source river basin.
(3) The maximum amountof water that may be transferred on a daily basis, and methods or devicesrequired to be installed and operated that measure the amount of water that istransferred.
(4) A provision that theCommission may amend a certificate to reduce the maximum amount of waterauthorized to be transferred whenever it appears that an alternative source ofwater is available to the certificate holder from within the receiving riverbasin, including, but not limited to, the purchase of water from another watersupplier within the receiving basin or to the transfer of water from anothersub‑basin within the receiving major river basin.
(5) A provision that theCommission shall amend the certificate to reduce the maximum amount of waterauthorized to be transferred if the Commission finds that the applicant'scurrent projected water needs are significantly less than the applicant'sprojected water needs at the time the certificate was granted.
(6) A requirement thatthe certificate holder report the quantity of water transferred during eachcalendar quarter. The report required by this subdivision shall be submitted tothe Commission no later than 30 days after the end of the quarter.
(7) Except as providedin this subdivision, a provision that the applicant will not resell the waterthat would be transferred pursuant to the certificate to another public watersupply system. This limitation shall not apply in the case of a proposed resaleor transfer among public water supply systems within the receiving river basinas part of an interlocal agreement or other regional water supply arrangement,provided that each participant in the interlocal agreement or regional watersupply arrangement is a co‑applicant for the certificate and will besubject to all the terms, conditions, and limitations made applicable to anylead or primary applicant.
(o) Administrative andJudicial Review. Administrative and judicial review of a final decision bythe Commission on a petition for a certificate under this section shall begoverned by Chapter 150B of the General Statutes.
(p) Certain PreexistingTransfers. In cases where an applicant requests approval to increase atransfer that existed on 1 July 1993, the Commission may approve or disapproveonly the amount of the increase. If the Commission approves the increase, thecertificate shall be issued for the amount of the preexisting transfer plus anyincrease approved by the Commission. A certificate for a transfer approved bythe Commission under G.S. 162A‑7 shall remain in effect as approved bythe Commission and shall have the same effect as a certificate issued underthis Part. A certificate for the increase of a preexisting transfer shall containall of the conditions and limitations required by subsection (m) of thissection.
(q) EmergencyTransfers. In the case of water supply problems caused by drought, apollution incident, temporary failure of a water plant, or any other temporarycondition in which the public health, safety, or welfare requires a transfer ofwater, the Secretary of Environment and Natural Resources may grant approvalfor a temporary transfer. Prior to approving a temporary transfer, theSecretary shall consult with those parties listed in subdivision (3) ofsubsection (c) of this section that are likely to be affected by the proposedtransfer. However, the Secretary shall not be required to satisfy the publicnotice requirements of this section or make written findings of fact andconclusions of law in approving a temporary transfer under this subsection. Ifthe Secretary approves a temporary transfer under this subsection, theSecretary shall specify conditions to protect other water users. A temporarytransfer shall not exceed six months in duration, but the approval may berenewed for a period of six months by the Secretary based on demonstrated needas set forth in this subsection.
(r) Relationship toFederal Law. The substantive restrictions, conditions, and limitations uponsurface water transfers authorized in this section may be imposed pursuant toany federal law that permits the State to certify, restrict, or condition anynew or continuing transfers or related activities licensed, relicensed, orotherwise authorized by the federal government. This section shall govern thetransfer of water from one river basin to another unless preempted by federallaw.
(s) PlanningRequirements. When any transfer for which a certificate was issued under thissection equals or exceeds eighty percent (80%) of the maximum amount authorizedin the certificate, the applicant shall submit to the Department a detailedplan that specifies how the applicant intends to address future foreseeablewater needs. If the applicant is required to have a local water supply plan,then this plan shall be an amendment to the local water supply plan required byG.S.143‑355(l). When the transfer equals or exceeds ninety percent (90%)of the maximum amount authorized in the certificate, the applicant shall beginimplementation of the plan submitted to the Department.
(t) Statement ofPolicy. It is the public policy of the State to maintain, protect, andenhance water quality within North Carolina. It is the public policy of thisState that the reasonably foreseeable future water needs of a public watersystem with its service area located primarily in the receiving river basin aresubordinate to the reasonably foreseeable future water needs of a public watersystem with its service area located primarily in the source river basin.Further, it is the public policy of the State that the cumulative impact oftransfers from a source river basin shall not result in a violation of theantidegradation policy set out in 40 Code of Federal Regulations § 131.12 (1July 2006 Edition) and the statewide antidegradation policy adopted pursuantthereto.
(u) Renewal ofCertificate. A petition to extend or renew a certificate shall be treated asa new petition. (1993,c. 348, s. 1; 1997‑443, ss. 11A.119(a), 15.48(c); 1997‑524, s. 1;1998‑168, s. 4; 2001‑474, s. 28; 2007‑484, s. 43.7C; 2007‑518,s. 3; 2008‑125, s. 1; 2008‑198, s. 11.5.)