Title: S.L. 1997-458
Category: Session Law

GENERAL ASSEMBLY OF NORTH CAROLINA
1997 SESSION

S.L. 1997-458
HOUSE BILL 515

AN ACT TO ENACT THE CLEAN WATER RESPONSIBILITY AND ENVIRONMENTALLY SOUND POLICY ACT, A COMPREHENSIVE AND BALANCED PROGRAM TO PROTECT WATER QUALITY, PUBLIC HEALTH, AND THE ENVIRONMENT.

The General Assembly of North Carolina enacts:

PART I.	MORATORIA ON CONSTRUCTION OR EXPANSION OF SWINE FARMS

Section 1.1.  (a) Moratorium Established. ‑‑ As used in this section, "swine farm" and "lagoon" have the same meaning as in G.S. 106‑802.  As used in this section, "animal waste management system" has the same meaning as in G.S. 143‑215.10B.  There is hereby established a moratorium on the construction or expansion of swine farms and on lagoons and animal waste management systems for swine farms.  The purposes of this moratorium are to allow counties time to adopt zoning ordinances under G.S. 153A‑340, as amended by Section 2.1 of this act; to allow time for the completion of the studies authorized by the 1995 General Assembly (1996 Second Extra Session); and to allow the 1999 General Assembly to receive and act on the findings and recommendations of those studies.  Except as provided in subsection (b) of this section, the Environmental Management Commission shall not issue a permit for an animal waste management system for a new swine farm or the expansion of an existing swine farm for a period beginning on 1 March 1997 and ending on 1 March 1999.  The construction or expansion of a swine farm or animal waste management system for a swine farm is prohibited during the period of the moratorium regardless of the date on which a site evaluation for the swine farm is completed and regardless of whether the animal waste management system is permitted under G.S. 143‑215.1 or Part 1A of Article 21 of Chapter 143 of the General Statutes or deemed permitted under 15A North Carolina Administrative Code 2H.0217.
(b)	Exceptions. ‑‑ The moratorium established by subsection (a) of this section does not prohibit:
(1)	Construction to repair a component of an existing swine farm or lagoon.
(2)	Construction to replace a component of an existing swine farm or lagoon if the replacement does not result in an increase in swine population, except as provided in subdivision (3) or (7) of this subsection.
(3)	Construction or expansion for the purpose of increasing the swine population to the projected population or to the population that the animal waste management system serving that swine farm is designed to accommodate, as set forth in a certified animal waste management plan filed with the Department of Environment, Health, and Natural Resources prior to 1 March 1997.
(4)	Construction or expansion for the purpose of complying with applicable animal waste management rules and not for the purpose of increasing the swine population.
(5)	Construction or expansion, if the person undertaking the construction or expansion of the swine farm, lagoon, or animal waste management system has been issued a permit for that construction or expansion under G.S. 143‑215.1 or Part 1A of Article 21 of Chapter 143 of the General Statutes prior to the date this act becomes effective.
(6)	Construction or expansion, if the person undertaking the construction or expansion of the swine farm, lagoon, or animal waste management system has, prior to 1 March 1997, either:
a.	Laid a foundation for a component of the swine farm, lagoon, or animal waste management system.
b.	Entered into a bona fide written contract for the construction or expansion of the swine farm, lagoon, or animal waste management system.
c.	Been approved for a loan or line of credit to finance the construction or expansion of the swine farm, lagoon, or animal waste management system and has obligated or expended funds derived from the loan or line of credit.
(7)	Construction or expansion of an innovative animal waste management system that does not employ an anaerobic lagoon and that has been approved by the Department of Environment, Health, and Natural Resources.
(c)	Establishing Eligibility for an Exemption. ‑‑ It shall be the responsibility of an applicant for a permit for an animal waste management system for a new swine farm or for the expansion of an existing swine farm under subdivisions (1) through (7) of subsection (b) of this section to provide information and documentation to the Department of Environment, Health, and Natural Resources that establishes, to the satisfaction of the Department, that the applicant is eligible for the permit.  In demonstrating eligibility for a permit under this section, the burden of proof shall be on the applicant.
Section 1.2.  (a)	As used in this section, "swine farm" and "lagoon" have the same meaning as in G.S. 106‑802.  As used in this section, "animal waste management system" has the same meaning as in G.S. 143‑215.10B.  There is hereby established a moratorium for any new or expanding swine farm or lagoon for which a permit is required under Parts 1 or 1A of Chapter 143 of the General Statutes in any county in the State: (i) that has a population of less than 75,000 according to the most recent decennial federal census; (ii) in which there is more than one hundred fifty million dollars ($150,000,000) of expenditures for travel and tourism based on the most recent figures of the Department of Commerce; and (iii) that is not in the coastal area as defined by G.S. 113A‑103. Effective 1 January 1997, until 1 March 1999, the Environmental Management Commission shall not issue a permit for an animal waste management system, as defined in G.S. 143‑215.10B, or for a new or expanded swine farm or lagoon, as defined in G.S. 106‑802.  The exemptions set out in subsection (b) of Section 1.1 of this act do not apply to the moratorium established under this section.
(b)	In order to protect travel and tourism, effective 1 March 1999, no animal waste management system shall be permitted except under an individual permit issued under Part 1 of Article 21 of Chapter 143 of the General Statutes in any county in the State: (i) that has a population of less than 75,000 according to the most recent decennial federal census; (ii) in which there is more than one hundred fifty million dollars ($150,000,000) of expenditures for travel and tourism based on the most recent figures of the Department of Commerce; and (iii) that is not in the coastal area as defined by G.S. 113A‑103.

PART II.	AGRICULTURAL ZONING BY COUNTIES

Section 2.1.  G.S. 153A‑340 reads as rewritten:
"§ 153A‑340.  Grant of power.
(a)	For the purpose of promoting health, safety, morals, or the general welfare, a county may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes, and to provide density credits or severable development rights for dedicated rights‑of‑way pursuant to G.S. 136‑66.10 or G.S. 136‑66.11.
(b)	(1)	These regulations may affect property used for bona fide farm purposes only as provided in subdivision (3) of this subsection.  This subsection does not limit regulation under this Part with respect to the use of farm property for nonfarm purposes.
(2)	Bona fide farm purposes include the production and activities relating or incidental to the production of crops, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agricultural products having a domestic or foreign market.
(3)	The definitions set out in G.S. 106‑802 apply to this subdivision.  A county may adopt zoning regulations governing swine farms served by animal waste management systems having a design capacity of 600,000 pounds steady state live weight (SSLW) or greater provided that the zoning regulations may not have the effect of excluding swine farms served by an animal waste management system having a design capacity of 600,000 pounds SSLW or greater from the entire zoning jurisdiction.
(c)	The regulations may provide that a board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained.  The regulations may also provide that the board of adjustment or the board of commissioners may issue special use permits or conditional use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified therein and may impose reasonable and appropriate conditions and safeguards upon these permits.  Where appropriate, the conditions may include requirements that street and utility rights‑of‑way be dedicated to the public and that recreational space be provided.  When issuing or denying special use permits or conditional use permits, the board of commissioners shall follow the procedures for boards of adjustment except that no vote greater than a majority vote shall be required for the board of commissioners to issue such permits, and every such decision of the board of commissioners shall be subject to review by the superior court by proceedings in the nature of certiorari.
(d)	A county may regulate the development over estuarine waters and over lands covered by navigable waters owned by the State pursuant to G.S. 146‑12, within the bounds of that county.
(e)	For the purpose of this section, the term 'structures' shall include floating homes.
(f)	Any petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board of commissioners is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the clerk at the time of the hearing of the case, whichever is later.  The decision of the board of commissioners may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested."
Section 2.2.  Zoning regulations governing swine farms served by animal waste management systems having a design capacity of 600,000 pounds steady state live weight (SSLW) or greater adopted under G.S. 153A‑340(b), as amended by Section 2.1 of this act, shall not, with respect to a swine farm in existence at the time the zoning ordinance is adopted:
(1)	Prohibit the continued existence of the swine farm.
(2)	Require the amortization of the swine farm.
(3)	Prohibit the repair or replacement on the same site of the swine farm so long as the repair or replacement does not increase the swine population beyond the population that the animal waste management system serving the swine farm is designed to accommodate, as set forth in the permit for the animal waste management system.

PART III.	CONTROL OF ODOR EMISSIONS FROM ANIMAL OPERATIONS

Section 3.1.  G.S. 143‑215.107(a) is amended by adding a new subdivision to read:
"(11)	To develop and adopt economically feasible standards and plans necessary to implement programs to control the emission of odors from animal operations, as defined in G.S. 143‑215.10B."
Section 3.2.  The Board of Governors of The University of North Carolina shall present its final report and recommendations on economically feasible odor control technologies, as provided in Section 27.3 of Chapter 18 of the 1995 Session Laws (1996 Second Extra Session), to the Environmental Review Commission and the Environmental Management Commission not later than 1 September 1998.  If economically feasible odor control technology for animal operations is available, the Environmental Management Commission shall adopt a temporary rule to regulate the emission of odors from animal operations under G.S. 143‑215.107(a)(11), as enacted by Section 3.1 of this act, no later than 1 March 1999.  The Environmental Management Commission shall report on its progress in developing and adopting a rule to regulate the emission of odors from animal waste management systems as a part of each quarterly report the Environmental Management Commission makes to the Environmental Review Commission pursuant to G.S. 143B‑282(b).

PART IV.	SWINE FARM SITING ACT AMENDMENTS

Section 4.1.  Article 67 of Chapter 106 of the General Statutes reads as rewritten:
"ARTICLE 67.
"Swine Farms.
"§ 106‑800.  Title.
This Article shall be known as the 'Swine Farm Siting Act'.
"§ 106‑801.  Purpose.
The General Assembly finds that certain limitations on the siting of swine houses and lagoons for swine farms can assist in the development of pork production, which contributes to the economic development of the State, by lessening the interference with the use and enjoyment of adjoining property.
"§ 106‑802.  Definitions.
As used in this Article, unless the context clearly requires otherwise:
(1)	'Lagoon' means a confined body of water to hold animal byproducts including bodily waste from animals or a mixture of waste with feed, bedding, litter or other agricultural materials.
(2)	Repealed by Session Laws 1997 (Regular Session, 1996), c. 626, s. 7.
(3)	'Occupied residence' means a dwelling actually inhabited by a person on a continuous basis as exemplified by a person living in his or her home.
(3a)	'Outdoor recreational facility' means any plot or tract of land on which there is located an outdoor swimming pool, tennis court, or golf course that is open to either the general public or to the members and guests of any organization having 50 or more members.
(4)	'Site evaluation' means an investigation to determine if a site meets all federal and State standards as evidenced by the Waste Management Facility Site Evaluation Report on file with the Soil and Water Conservation District office or a comparable report certified by a professional engineer or a comparable report certified by a technical specialist approved by the North Carolina Soil and Water Conservation Commission.

(5)	'Swine farm' means a tract of land devoted to raising 250 or more animals of the porcine species.
(6)	'Swine house' means a building that shelters porcine animals on a continuous basis.
"§ 106‑803.  Siting requirements for swine houses, lagoons, and land areas onto which waste is applied at swine farms.
(a)	A swine house or a lagoon that is a component of a swine farm shall be located:
(1)	At least 1,500 feet from any occupied residence.
(2)	At least 2,500 feet from any school; hospital; church; outdoor recreational facility; national park; State Park, as defined in G.S. 113‑44.9; historic property acquired by the State pursuant to G.S. 121‑9 or listed in the North Carolina Register of Historic Places pursuant to G.S. 121‑4.1; or child care center, as defined in G.S. 110‑86, that is  licensed under Article 7 of Chapter 110 of the General Statutes.
(3)	At least 500 feet from any property boundary.
(4)	At least 500 feet from any well supplying water to a public water system, as defined in G.S. 130A‑313.
(5)	At least 500 feet from any other well that supplies water for human consumption.  This subdivision does not apply to a well located on the same parcel or tract of land on which the swine house or lagoon is located and that supplies water only for use on that parcel or tract of land or for use on adjacent parcels or tracts of land all of which are under common ownership or control.
(a1)	The outer perimeter of the land area onto which waste is applied from a lagoon that is a component of a swine farm shall be at least  75 feet from any boundary of property on which an occupied residence is located and from any perennial stream or river, other than an irrigation ditch or canal.
(a2)	No component of a liquid animal waste management system for which a permit is required under Part 1 or 1A of Article 21 of Chapter 143 of the General Statutes, other than a land application site, shall be constructed on land that is located within the 100‑year floodplain.
(b)	A swine house or a lagoon that is a component of a swine farm may be located closer to a residence, school, hospital, church, or a property boundary than is allowed under subsection (a) of this section if written permission is given by the owner of the property and recorded with the Register of Deeds.
"§ 106‑804.  Enforcement.
(a)	Any person who owns property directly affected by the siting requirements of G.S. 106‑803 pursuant to subsection (b) of this section may bring a civil action against the owner or operator of a swine farm who has violated G.S. 106‑803 and may seek any one or more of the following:
(1)	Injunctive relief.
(2)	An order enforcing the siting requirements under G.S. 106‑803.
(3)	Damages caused by the violation.
(b)	A person is directly affected by the siting requirements of G.S. 106‑803 only if the person owns a facility or property located within the siting requirements specified under G.S. 106‑803.

	

(c)	If the court determines it is appropriate, the court may award court costs, including reasonable attorneys' fees and expert witnesses' fees, to any party. If a temporary restraining order or preliminary injunction is sought, the court may require the filing of a bond or equivalent security. The court shall determine the amount of the bond or security.
(d)	Nothing in this section shall restrict any other right that any person may have under any statute or common law to seek injunctive or other relief.
"§ 106‑805.  Written notice of swine farms.
Any person who intends to construct a swine farm whose animal waste management system is subject to a permit under Part 1 or 1A of Article 21 of Chapter 143 of the General Statutes shall, after completing a site evaluation and before the farm site is modified, notify all adjoining property owners; all property owners who own property located across a public road, street, or highway from the swine farm; the county or counties in which the farm site is located; and the local health department or departments having jurisdiction over the farm site of that person's intent to construct the swine farm.  This notice shall be by certified mail sent to the address on record at the property tax office in the county in which the land is located.  Notice to a county shall be sent to the county manager or, if there is no county manager, to the chair of the board of county commissioners.  Notice to a local health department shall be sent to the local health director.  The written notice shall include all of the following:
(1)	The name and address of the person intending to construct a swine farm.
(2)	The type of swine farm and the design capacity of the animal waste management system.
(3)	The name and address of the technical specialist preparing the waste management plan.
(4)	The address of the local Soil and Water Conservation District office.
(5)	Information informing the adjoining property owners and the property owners who own property located across a public road, street, or highway from the swine farm that they may submit written comments to the Division of Water Quality, Department of Environment, Health, and Natural Resources."
Section 4.2.  The amendments to subsections (a) and (a1) of G.S. 106‑803 made by Section 4.1 of this act and G.S. 106‑803(a2), added to G.S. 106‑803 by Section 4.1 of this act, apply to any new liquid animal waste management system for which construction commences on or after the date this act becomes law and to any expansion of an existing liquid animal waste management system for which construction commences on or after the date this act becomes law.

PART V.	PRIORITY FOR LOANS OR GRANTS FROM THE CLEAN WATER REVOLVING LOAN AND GRANT FUND TO ASSIST LOCAL GOVERNMENTS IN MEETING THE NITROGEN AND PHOSPHOROUS LIMITS FOR SURFACE WATERS; PRIORITY FOR FUNDING FROM VARIOUS FUNDING SOURCES BASED ON COMPREHENSIVE LAND‑USE PLANNING BY LOCAL GOVERNMENTS

Section 5.1.  G.S. 159G‑10 reads as rewritten:
"§ 159G‑10.  Priorities.
(a)	Determination. ‑‑ Determination of priorities to be assigned each eligible application shall be made semiannually by each receiving agency during each fiscal year. Every eligible application filed under G.S. 159G‑5(c), G.S. 159G‑6(b)(1) or G.S. 159G‑6(c)(1) shall be considered by the receiving agency with every other application filed under G.S. 159G‑5(c), G.S. 159G‑6(b)(1) or G.S. 159G‑6(c)(1), respectively, and eligible for consideration during the same priority period, to determine the priority to be assigned to each application. The same procedure shall apply to every eligible application filed under G.S. 159G‑6(b)(3) and G.S. 159G‑6(c)(3) of this Chapter. Any application which does not contain the information required by this Chapter or regulations adopted by the receiving agency(s) shall not be deemed received until such information is furnished by the applicant to the receiving agency.
(a1)	(See note) Expired.
(b)	Priority Factors. ‑‑ All applications for revolving loans or grants under this Chapter eligible for consideration during each priority period shall be assigned a priority for such funds by the receiving agency.  The priority factors shall be similar to those developed under the North Carolina Clean Water Bond Act of 1977, as provided in and modified by this subsection.
(1)	General Criteria. ‑‑
a.	The general criteria provided in 1 NCAC 22.0401 through .0403 on January 1, 1987, shall apply, except that 1 NCAC 22.0401(c) shall apply only to State funds appropriated to match available federal funds.
b.	The existence of a comprehensive land‑use plan that meets the requirements of subsection (e) of this section is a general criterion for prioritizing which local government units will receive a loan or grant.  A local government unit that is not authorized to adopt a comprehensive land‑use plan but that is located in whole or in part in another local government unit that has adopted a comprehensive land‑use plan shall receive the same priority treatment as a local government unit that has authority to adopt a comprehensive land‑use plan.  A comprehensive land‑use plan that meets the requirements of subsection (e) of this section and that exceeds the minimum State standards for protection of water resources shall receive more points than a plan that does not exceed those standards.  Additional points may be awarded for actions taken toward implementation of a comprehensive land‑use plan.  These actions may include the adoption of a zoning ordinance or any other measure that significantly contributes to the implementation of the comprehensive land‑use plan.
(2)	Wastewater Treatment Work Projects. ‑‑ The priority criteria provided in 1 NCAC 22.0501 through .0506 on January 1, 1987, shall apply to applications for wastewater treatment work projects, except that 1 NCAC 22.0503 shall not apply.
(3)	Wastewater Collection System Projects. ‑‑ The priority criteria provided in 1 NCAC 22.0601 through .0606 on January 1, 1987, shall apply to applications for wastewater collection system projects, except that 1 NCAC 22.0601(2)(a) and (3), and 1 NCAC 22.0605(2), (3) and (4) shall not apply.
(4)	Water Supply System Projects. ‑‑ The priority criteria provided in 1 NCAC 22.0701 through .0704 on January 1, 1987, shall apply to applications for water supply system projects.
(5)	Wastewater Treatment Works Improvements to Meet Nitrogen and Phosphorous Limits. ‑‑ The Environmental Management Commission shall adopt a rule specifying priority criteria for modifications to existing permitted wastewater treatment facilities that are owned or operated by local government units and that are subject to G.S. 143‑215.1(c1) or G.S. 143‑215.1(c2) to enable local government units to comply with G.S. 143‑215.1(c1) and G.S. 143‑215.1(c2).
(6)	The total number of points available in the respective categories shall be deemed adjusted in accordance with the provisions of subdivisions (1) through  (5)of this subsection.
(c)	Assignment of Priority. ‑‑ A written statement relative to each priority assigned shall be prepared by the receiving agency and shall be attached to the application. The priority assigned shall be conclusive.
(d)	Failure to Qualify. ‑‑ Any application filed under G.S. 159G‑5(c), G.S. 159G‑6(b) or G.S. 159G‑6(c) that does not qualify for a revolving loan or grant as of the priority period in which the application was eligible for consideration by reason of the priority assigned the application shall be considered for a revolving loan or grant during the next succeeding priority period upon request of the applicant. If such application should again fail to qualify for a revolving loan or grant during the second priority period by reason of the priority assigned, the application shall receive no further consideration. An applicant may file a new application at any time, and may amend any pending application to include additional data or information.
(e)	Land‑Use Plan. ‑‑ Local government units are encouraged to adopt comprehensive land‑use plans.  The Division of Community Assistance in the Department of Commerce shall, upon request, provide technical assistance to any economically distressed local government unit in preparing a comprehensive land‑use plan.  A comprehensive land‑use plan that meets the requirements of Article 18 of Chapter 153A of the General Statutes or Article 19 of Chapter 160A of the General Statutes shall contain reasonable provisions designed to protect existing water uses and assure compliance with water quality standards and classifications in all waters of the State affected by the land‑use plan."
Section 5.2.  G.S. 159G‑3 is amended by adding a new subdivision to read:
"(7a)	'Economically distressed local government unit' means a local government unit located, in whole or in part, in a county designated as economically distressed by the Secretary of Commerce under G.S. 143B‑437A."

PART VI.	NITROGEN AND PHOSPHOROUS LIMITS FOR SURFACE WATERS

Section 6.1.  G.S. 143‑215.1 is amended by adding five new subsections to read:
"(c1)	Any person who is required to obtain an individual wastewater permit under this section for a facility discharging to the surface waters of the State that have been classified as nutrient sensitive waters (NSW) under rules adopted by the Commission shall not discharge more than an average annual mass load of total nitrogen than would result from a discharge of the permitted flow, determined at the time the Commission makes a finding that those waters are experiencing or are subject to excessive growth of microscopic or macroscopic vegetation, having a total nitrogen concentration of five and one‑half milligrams of nitrogen per liter (5.5 mg/l).  The total nitrogen concentration of 5.5 mg/l for nutrient sensitive waters required by this subsection applies only to:
(1)	Facilities that were placed into operation prior to 1 July 1997 or for which an authorization to construct was issued prior to 1 July 1997 and that have a design capacity to discharge 500,000 gallons per day or more.
(2)	Facilities for which an authorization to construct is issued on or after 1 July 1997.
(c2)	Any person who is required to obtain an individual wastewater permit under this section for a facility discharging to the surface waters of the State that have been classified as nutrient sensitive waters (NSW) under rules adopted by the Commission where phosphorous is designated by the Commission as a nutrient of concern shall not discharge more than an average annual mass load of total phosphorous than would result from a discharge of the permitted flow, determined at the time the Commission makes a finding that those waters are experiencing or are subject to excessive growth of microscopic or macroscopic vegetation, having a total phosphorous concentration of two milligrams of phosphorous per liter (2.0 mg/l).  The total phosphorous concentration of 2.0 mg/l for nutrient sensitive waters required by this subsection applies only to:
(1)	Facilities that were placed into operation prior to 1 July 1997 or for which an authorization to construct was issued prior to 1 July 1997 and that have a design capacity to discharge 500,000 gallons per day or more.
(2)	Facilities for which an authorization to construct is issued on or after 1 July 1997.
(c3)	A person to whom subsection (c1) or (c2) of this section applies may meet the limits established under those subsections either individually or on the basis of a cooperative agreement with other persons who hold individual wastewater permits if the cooperative agreement is approved by the Commission.  A person to whom subsection (c1) or (c2) of this section applies whose agreement to accept wastewater from another wastewater treatment facility that discharges into the same water body and that results in the elimination of the discharge from that wastewater treatment facility shall be allowed to increase the average annual mass load of total nitrogen and total phosphorous that person discharges by the average annual mass load of total nitrogen and total phosphorous of the wastewater treatment facility that is eliminated.  If the wastewater treatment facility that is eliminated has a permitted flow of less than 500,000 gallons per day, the average annual mass load of total nitrogen or phosphorous shall be calculated from the most recent available data.  A person to whom this subsection applies shall comply with nitrogen and phosphorous discharge monitoring requirements established by the Commission.  This average annual load of nitrogen or phosphorous shall be assigned to the wastewater discharge allocation of the wastewater treatment facility that accepts the wastewater.
(c4)	A person to whom subsection (c1) of this section applies may request the Commission to approve a total nitrogen concentration greater than that set out in subsection (c1) of this section at a decreased permitted flow so long as the average annual mass load of total nitrogen is equal to or is less than that required under subsection (c1) of this section.  A person to whom subsection (c2) of this section applies may request the Commission to approve a total phosphorous concentration greater than that set out in subsection (c2) of this section at a decreased permitted flow so long as the average annual mass load of total phosphorous is equal to or is less than that required under subsection (c2) of this section.  If, after any 12‑month period following approval of a greater concentration at a decreased permitted flow, the Commission finds that the greater concentration at a decreased permitted flow does not result in an average annual mass load of total nitrogen or total phosphorous equal to or less than those that would be achieved under subsections (c1) and (c2) of this section, the Commission shall rescind its approval of the greater concentration at a decreased permitted flow and the requirements of subsections (c1) and (c2) of this section shall apply.
(c5)	For surface waters to which the limits set out in subsection (c1) or (c2) of this section apply and for which a calibrated nutrient response model that meets the requirements of this subsection has been approved by the Commission, mass load limits for total nitrogen or total phosphorous shall be based on the results of the nutrient response model.  A calibrated nutrient response model shall be developed and maintained with current data, be capable of predicting the impact of nitrogen or phosphorous in the surface waters, and incorporated into nutrient management plans by the Commission.  The maximum mass load for total nitrogen or total phosphorous established by the Commission shall be substantiated by the model and may require individual discharges to be limited at concentrations that are different than those set out in subsection (c1) or (c2) of this section.  A calibrated nutrient response model shall be developed by the Department in conjunction with the affected parties and is subject to approval by the Commission."
Section 6.2.  G.S. 143‑215.6A(a) is amended by adding a new subdivision to read:
"(10)	Violates subsections (c1) through (c5) of G.S. 143‑215.1 or a rule adopted pursuant to subsections (c1) through (c5) of G.S. 143‑215.1."
Section 6.3.  By 1 November 1997, the Environmental Management Commission shall develop a schedule of dates between 1 January 1998 and 1 January 2003, by which existing facilities must comply with G.S. 143‑215.1(c1) and G.S. 143‑215.1(c2), as enacted by Section 6.1 of this act.  The schedule of compliance dates shall follow as closely as possible the dates on which permits for existing facilities must be renewed.  New facilities and expansions of existing facilities for which an application for a permit is received by the Department of Environment, Health, and Natural Resources on behalf of the Environmental Management Commission prior to the date this act becomes effective shall be treated as existing facilities.
Section 6.4.  G.S. 143‑215.1(c5), as enacted by Section 6.1 of this act, shall not be construed to invalidate any limit established by the Environmental Management Commission prior to the date this act becomes effective.  A limit established by the Environmental Management Commission prior to the date this act becomes effective may be altered pursuant to a calibrated nutrient response model approved by the Commission in accordance with G.S. 143‑215.1(c5), as enacted by Section 6.1 of this act.

PART VII.	STORMWATER MANAGEMENT

Section 7.1.  G.S. 143‑214.7 reads as rewritten:
"§ 143‑214.7.  Stormwater runoff rules and programs.
(a)	Policy, Purpose and Intent. ‑‑ The Commission shall undertake a continuing planning process to develop and adopt a statewide plan with regard to establishing and enforcing stormwater rules for the purpose of protecting the surface waters of the State.  It is the purpose and intent of this section that, in developing stormwater runoff rules and programs, the Commission may utilize stormwater rules established by the Commission to protect classified shellfish waters, water supply watersheds, and outstanding resource waters; and to control stormwater runoff disposal in coastal counties and other nonpoint sources.  Further, it is the intent of this section that the Commission phase in the stormwater rules on a priority basis for all sources of pollution to the water.  The plan shall be applied evenhandedly throughout the State to address the State's water quality needs.  The Commission shall continually monitor water quality in the State and shall revise stormwater runoff rules as necessary to protect water quality.  As necessary, the stormwater rules shall be modified to comply with federal regulations.
(b)	The Commission shall implement stormwater runoff rules and programs for point and nonpoint sources on a phased‑in statewide basis.  The Commission shall consider standards and best management practices for the protection of the State's water resources in the following order of priority:
(1)	Classified shellfish waters.
(2)	Water supply watersheds.
(3)	Outstanding resource waters.
(4)	High quality waters.
(5)	All other waters of the State to the extent that the Commission finds control of stormwater is needed to meet the purposes of this Article.  
(c)	 The Commission shall develop model stormwater management programs that may be implemented by State agencies and units of local government.  Model stormwater management programs shall be developed to protect existing water uses and assure compliance with water quality standards and classifications.  A State agency or unit of local government may submit to the Commission for its approval a stormwater control program for implementation within its jurisdiction.  To this end, State agencies may adopt rules, and units of local government are authorized to adopt ordinances and regulations necessary to establish and enforce stormwater control programs.  Units of local government are authorized to create or designate agencies or subdivisions to administer and enforce the programs.  Two or more units of local government are authorized to establish a joint program and to enter into any agreements that are necessary for the proper administration and enforcement of the program.
(d)	The Commission shall review each stormwater management program submitted by a State agency or unit of local government and shall notify the State agency or unit of local government that submitted the program that the program has been approved, approved with modifications, or disapproved.  The Commission shall approve a program only if it finds that the standards of the program equal or exceed those of the model program adopted by the Commission pursuant to this section.
(e)	The Commission shall annually report to the Environmental Review Commission on the implementation of this section, including the status of any stormwater control programs administered by State agencies and units of local government, on or before 1 October of each year."
Section 7.2.  The Environmental Management Commission shall make the first annual report required by G.S. 143‑214.7(e), as enacted by Section 7.1 of this act, on or before 1 October 1998.
Section 7.3.  The Department of Transportation shall work diligently and in full cooperation with the Division of Water Quality of the Department of Environment, Health, and Natural Resources, using whatever resources may be necessary, to complete the development of a statewide stormwater management permit under the National Pollutant Discharge Elimination System (NPDES).  The General Assembly intends that this permit govern all programs administered by the Department of Transportation and that the permit will be issued no later than 1 October 1997.  The Department of Transportation and the Division of Water Quality shall jointly report to the Environmental Review Commission as to their progress in meeting the mandate of this section no later than 1 October 1997.

PART VIII.	COMPLETION OF BASINWIDE WATER QUALITY MANAGEMENT PLANS FOR EACH OF THE STATE'S SEVENTEEN RIVER BASINS; ADDITIONAL REQUIREMENTS FOR BASINWIDE WATER QUALITY MANAGEMENT PLANS; ADOPTION OF TOTAL MAXIMUM DAILY LOADS FOR EACH RIVER BASIN

Section 8.1.  The General Assembly makes the following findings:
(1)	There are 17 major river basins in the State.
(2)	Many activities occur in the vicinity of each of these river basins, and the activities and conditions in one river basin may vary greatly from those in another river basin.
(3)	The public is focusing on the swine industry's role in degrading water quality, but, in fact, numerous other industries and even private citizens are responsible for contributing pollutants to the waters of the State.  Among the point source and nonpoint sources of pollutants in our State's waters are:  municipal wastewater facilities, industrial wastewater systems, septic tank systems, stormwater management systems, golf courses, farms that use fertilizers and pesticides for crops, public and commercial lawns and gardens, and atmospheric deposition, as well as animal operations.
(4)	The best and most effective approach to protecting and improving water quality is a comprehensive, systemwide management approach.
(5)	Basinwide water quality management is an approach already being taken by the Department of Environment, Health, and Natural Resources to improve the efficiency, effectiveness, and consistency of its water quality protection program.  It is not a new regulatory program; it is a watershed‑based approach that provides for basinwide permitting and integration of point and nonpoint source controls through existing regulatory and cooperative programs.  The Neuse River Basinwide Management Plan has already been released.  Seventeen basinwide plans are planned to be prepared by the Department over the next five years.
(6)	The better solution to improving water quality lies not in abandoning efforts under way in an effort to find a new solution, but to accelerate effective efforts currently in progress by establishing a deadline for completing, and expediting the implementation of, the 17 comprehensive conservation and management plans for each major river basin in the State.
(7)	The public should be informed of the complexity of the problems regarding water quality so that the public can appreciate the effectiveness of a systemwide approach and the degree of effort that has already been expended to address these problems.  Public involvement should be encouraged, and public education should be enhanced.
Section 8.2.  Part 1 of Article 21 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143‑215.8B.  Basinwide water quality management plans.
(a)	The Commission shall develop and implement a basinwide water quality management plan for each of the 17 major river basins in the State.  In developing and implementing each plan, the Commission shall consider the cumulative impacts of all activities across a river basin and all point sources and nonpoint sources of pollutants, including municipal wastewater facilities, industrial wastewater systems, septic tank systems, stormwater management systems, golf courses, farms that use fertilizers and pesticides for crops, public and commercial lawns and gardens, atmospheric deposition, and animal operations.
(b)	Each basinwide water quality management plan shall:
(1)	Provide that all point sources and nonpoint sources of pollutants jointly share the responsibility of reducing the pollutants in the State's waters in a fair, reasonable, and proportionate manner, using computer modeling and the best science and technology reasonably available and considering future anticipated population growth and economic development.
(2)	If any of the waters located within the river basin are designated as nutrient sensitive waters, then the basinwide water quality management plan shall establish a goal to reduce the average annual mass load of nutrients that are delivered to surface waters within the river basin from point and nonpoint sources.  The Commission shall establish a nutrient reduction goal for the nutrient or nutrients of concern that will result in improvements to water quality such that the designated uses of the water, as provided in the classification of the water under G.S. 143‑214.1(d), are not impaired.  The plan shall require that incremental progress toward achieving the goal be demonstrated each year.  The Commission shall develop a five‑year plan to achieve the goal.  In developing the plan, the Commission shall determine and allow appropriate credit toward achieving the goal for reductions of water pollution by point and nonpoint sources through voluntary measures.
(c)	The Commission shall review and revise its 17 basinwide water quality management plans at least every five years to reflect changes in water quality, improvements in modeling methods, improvements in wastewater treatment technology, and advances in scientific knowledge and, as need to support designated uses of water, modifications to management strategies.
(d)	The Commission and the Department shall each report on or before 1 October of each year on an annual basis to the Environmental Review Commission on the progress in developing and implementing basinwide water quality management plans and on increasing public involvement and public education in connection with basinwide water quality management planning.  The report to the Environmental Review Commission by the Department shall include a written statement as to all concentrations of heavy metals and other pollutants in the surface waters of the State that are identified in the course of preparing or revising the basinwide water quality management plans.
(e)	A basinwide water quality management plan is not a rule and Article 2A of Chapter 150B of the General Statutes does not apply to the development of basinwide water quality management plans.  Any water quality standard or classification and any requirement or limitation of general applicability that implements a basinwide water quality management plan is a rule and must be adopted as provided in Article 2A of Chapter 150B of the General Statutes."
Section 8.3.  The Environmental Management Commission shall increase its current efforts to involve the public in the development and implementation of the basinwide water quality management plans, including conducting public meetings throughout the State.  The Department of Environment, Health, and Natural Resources shall increase public education efforts to inform the public of the complexity of the problems related to water quality, the benefits of taking a comprehensive, systemwide approach to water quality improvement, and the need for all point and nonpoint sources of pollutants to have an active role in reducing pollutants, either by reducing the amount of pollutants used or by improving the treatment and disposal of wastewater, or both.  The Department shall provide information to keep the public well‑informed of water quality issues in the State.  
Section 8.4.  G.S. 143B‑282 is amended by adding two new subsections to read:
"(c)	The Environmental Management Commission shall implement the provisions of subsections (d) and (e) of 33 U.S.C. § 1313 by identifying and prioritizing impaired waters and by developing appropriate total maximum daily loads of pollutants for those impaired waters.  The Commission shall incorporate those total maximum daily loads approved by the United States Environmental Protection Agency into its continuing basinwide water quality planning process.
(d)	The Environmental Management Commission may adopt rules setting out strategies necessary for assuring that water quality standards are met by any point or nonpoint source or by any category of point or nonpoint sources that is determined by the Commission to be contributing to the water quality impairment.  These strategies may include, but are not limited to, additional monitoring, effluent limitations, supplemental standards or classifications, best management practices, protective buffers, schedules of compliance, and the establishment of and delegations to intergovernmental basinwide groups."
Section 8.5.  G.S. 143B‑282(a)(2) is amended by adding a new sub‑subdivision to read:
"k.	To implement basinwide water quality management plans developed pursuant to G.S. 143‑215.8B."
Section 8.6.  The Environmental Management Commission may adopt rules to implement this Part as provided in Article 2A of Chapter 150B of the General Statutes.  The Environmental Management Commission shall not adopt a temporary rule to implement this Part.  The Environmental Management Commission shall report on its progress in implementing this Part as a part of each quarterly report the Environmental Management Commission makes to the Environmental Review Commission pursuant to G.S. 143B‑282(b).
Section 8.7.  The enactment of G.S. 143‑215.8B by Section 8.2 shall not be construed to invalidate the development and implementation of basinwide water quality management plans by the Environmental Management Commission and the Department of Environment, Health, and Natural Resources that has occurred prior to the date this act becomes effective.

PART IX.	CLARIFICATION THAT THE ENVIRONMENTAL MANAGEMENT COMMISSION MAY REQUIRE INDIVIDUAL AS WELL AS GENERAL PERMITS FOR ANIMAL WASTE MANAGEMENT SYSTEMS

Section 9.1.  G.S. 143‑215.1(a)(12) reads as rewritten:
"(12)	Construct or operate an animal waste management system, as defined in G.S. 143‑215.10B, without obtaining a permit under either this Part or Part 1A of this Article."
Section 9.2.  G.S. 143‑215.10C(a) reads as rewritten:
"(a)	No person shall construct or operate an animal waste management system for an animal operation without first obtaining an individual permit under Part 1 of this Article or a general permit under this Part.  The Commission shall develop a system of individual and general permits for animal operations based on species, number of animals, and other relevant factors.  It is the intent of the General Assembly that most animal waste management systems be permitted under a general permit issued under this Part.  The Commission, in its discretion, may require that an animal waste management system be permitted under an individual permit issued under Part 1 of this Article if the Commission determines that an individual permit is necessary to protect water quality, public health, or the environment."

PART X.	GRADUATED VIOLATION POINTS SYSTEM FOR SWINE OPERATORS; STUDY OF SWINE INTEGRATORS CIVIL PENALTY LIABILITY

Section 10.1.  Part 1 of Article 21 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143‑215.6E.  Violation Points System applicable to swine farms.
(a)	The Commission shall develop a Violation Points System applicable to permits for animal waste management systems for swine farms.  This system shall operate in addition to the provisions of G.S. 143‑215.6A.  This system shall not alter the authority of the Commission to revoke a permit for an animal waste management system for a swine farm.  The Violation Points System shall provide that:
(1)	Violations that involve the greatest harm to the natural resources of the State, the groundwater or surface water quantity or quality, public health, or the environment shall receive the most points and shall be considered significant violations.
(2)	Violations that are committed willfully or intentionally shall be considered significant violations.
(3)	The number of points received shall be directly related to the degree of negligence or willfulness.
(4)	The commission of three significant violations, or the commission of lesser violations that result in a predetermined cumulative number of points, within a limited period of time of not less than five years shall result in the mandatory revocation of a permit.
(5)	The commission of one willful violation that results in serious harm may result in the revocation of a permit.
(b)	In developing the Violation Points System under this section, the Commission shall determine the:
(1)	Number of points that lesser violations must cumulatively total to result in the revocation of a permit.
(2)	Limited period of time during which the commission of three significant violations, or the commission of a greater number of lesser violations, will result in the revocation of the operator's permit.  This limited period of time shall not be less than five years.
(3)	Duration of the permit revocation.
(4)	Conditions under which the person whose permit is revoked may reapply for another permit for an animal waste management system for a swine farm.
(c)	In developing the Violation Points System under this section, the Commission shall provide for an appeals process."
Section 10.2.  (a) The Department of Environment, Health, and Natural Resources shall develop a recommended system of civil penalties applicable to integrators of swine operations.  These civil penalties shall be imposed upon the revocation of a permit of an operator under contract with that integrator for the production of swine at the time the violation that resulted in the revocation of the operator's permit occurred, whether or not that operator was under contract with that integrator throughout the period of time all the violations that contributed to this permit revocation occurred.  In conjunction with developing this system of civil penalties for integrators of swine operations, the Environmental Management Commission shall provide that the Director of the Division of Water Quality of the Department of Environment, Health, and Natural Resources notify all integrators of all violations assessed against operators who are under contract for the production of swine with that integrator and, upon the written request by the integrator, notify that integrator of all violations assessed an operator with whom the integrator contemplates entering into a contract.  The Environmental Management Commission shall also study the issue of liability for cleanup costs and appropriate penalties for integrators of swine operations if an operator commits a willful, wanton, or grossly negligent violation that results in significant environmental damage.
(b)	No later than 1 March 1998, the Department of Environment, Health, and Natural Resources shall report its findings and recommendations, including legislative proposals, if any, on the issues to be studied under subsection (a) of this section.  This report shall include a recommended system of civil penalties applicable to integrators of swine operations for violations by growers who are under contract with that integrator for the production of swine.  The Environmental Review Commission shall determine whether to submit a legislative proposal based upon this recommended system to the 1997 General Assembly, 1998 Regular Session.

PART XI.	STATE BUREAU OF INVESTIGATION REVIEW OF WASTE DISCHARGE VIOLATIONS AS POSSIBLE FELONIES; ADDITIONAL REQUIREMENTS FOR DEMONSTRATION OF FINANCIAL QUALIFICATION BY CERTAIN PERMIT APPLICANTS

Section 11.1.  G.S. 143‑215.6B is amended by adding a new subsection to read:
"(k)	The Secretary shall refer to the State Bureau of Investigation for review any discharge of waste by any person or facility in any manner that violates this Article or rules adopted pursuant to this Article that involves the possible commission of a felony.  Upon receipt of a referral under this section, the State Bureau of Investigation may conduct an investigation and, if appropriate, refer the matter to the district attorney in whose jurisdiction any criminal offense has occurred.  This subsection shall not be construed to limit the authority of the Secretary to refer any matter to the State Bureau of Investigation for review."
Section 11.2.  G.S. 143‑215.1(b) reads as rewritten:
"(b)	Commission's Power as to Permits. ‑‑ 
(1)	The Commission shall act on all permits so as to prevent, so far as reasonably possible, considering relevant standards under State and federal laws, any significant increase in pollution of the waters of the State from any new or enlarged sources.  No permit shall be denied and no condition shall be attached to the permit, except when the Commission finds such denial or such conditions necessary to effectuate the purposes of this Article.
(2)	The Commission shall also act on all permits so as to prevent violation of water quality standards due to the cumulative effects of permit decisions.  Cumulative effects are impacts attributable to the collective effects of a number of projects and include the effects of additional projects similar to the requested permit in areas available for development in the vicinity.  All permit decisions shall require that the practicable waste treatment and disposal alternative with the least adverse impact on the environment be utilized.
(3)	General permits may be issued under rules adopted pursuant to Chapter 150B of the General Statutes.  Such rules may provide that minor activities may occur under a general permit issued in accordance with conditions set out in such rules.  All persons covered under general permits shall be subject to all enforcement procedures and remedies applicable under this Article.
(4)	The Commission shall have the power:
a.	To grant a permit with such conditions attached as the Commission believes necessary to achieve the purposes of this Article.
b.	To require that an applicant satisfy the Department that the applicant, or any parent, subsidiary, or other affiliate of the applicant or parent:
1.	Is financially qualified to carry out the activity for which the permit is required under subsection (a) of this section; and
2.	Has substantially complied with the effluent standards and limitations and waste management treatment practices applicable to any activity in which the applicant has previously engaged, and has been in substantial compliance with other federal and state laws, regulations, and rules for the protection of the environment.
3.	As used in this subdivision, the words 'affiliate,' 'parent,' and 'subsidiary' have the same meaning as in 17 Code of Federal Regulations § 240.12b‑2 (1 April 1990 Edition).
4.	For a privately owned treatment works that serves 15 or more service connections or that regularly serves 25 or more individuals, financial qualification may be demonstrated through the use of a letter of credit, insurance, surety, trust agreement, financial test, bond, or a guarantee by corporate parents or third parties who can pass the financial test.  No permit shall be issued under this section for a privately owned treatment works that serves 15 or more service connections or that regularly serves 25 or more individuals, until financial qualification is established and the issuance of the permit shall be contingent on the continuance of the financial qualification for the duration of the activity for which the permit was issued.
c.	To modify or revoke any permit upon not less than 60 days' written notice to any person affected.
d.	To designate certain classes of minor activities for which a general permit may be issued, after considering:
1.	The environmental impact of the activities;
2.	How often the activities are carried out;
3.	The need for individual permit oversight; and
4.	The need for public review and comment on individual permits.
e.	To designate certain classes of minor activities for which:
1.	Performance conditions may be established by rule; and
2.	Individual or general permits are not required."

PART XII.	ADDITIONAL STUDIES

Section 12.1.  The Environmental Review Commission shall study the feasibility and the desirability of requiring persons who apply fertilizers or other soil‑enriching nutrients onto land to be certified under a certification program that requires training and passing an examination.  In conjunction with this study, the Environmental Review Commission shall consider the amounts of fertilizers and pesticides used on public roadways, at public parks and recreation areas, at commercial properties, at churches, at athletic fields and schools, near airstrips at airports, on golf courses, and on residential lawns and gardens that are maintained by commercial lawn services as well as those that are maintained by the residential dweller.  During this study, the Department of Transportation shall report to the Environmental Review Commission the amounts of fertilizers and pesticides that it uses to maintain turfgrass, ornamental plantings, and trees along the State roadways.  The Environmental Review Commission shall submit its legislative recommendations, if any, resulting from this study to the 1997 General Assembly, 1998 Regular Session.
Section 12.2.  The Department of Agriculture shall submit the next North Carolina Turfgrass Survey to the Environmental Review Commission no later than one month after the survey is published.
Section 12.3.  The Environmental Review Commission shall study the development of guidelines for best management practices for golf courses.  The study shall address golf course planning, siting, design, construction, maintenance, and operation in relation to water usage; stormwater runoff; use of fertilizers, pesticides, and  herbicides; waste management; and any other matters necessary to protect water quality, public health, and the environment.  The Environmental Review Commission shall submit its legislative recommendations, if any, resulting from this study to the 1997 General Assembly, 1998 Regular Session.
Section 12.4.  (a)	The Department of Agriculture shall develop a plan to phase out the use of anaerobic lagoons and sprayfields as primary methods of disposing of animal waste at swine farms.
(b)	In developing the plan under subsection (a) of this section, the Department of Agriculture shall consider the feasibility of phasing in the use of solid waste management systems and aerobic wastewater management systems to treat and dispose of animal waste at swine farms, including, without limitation, package treatment plants, closed‑loop systems, and central waste disposal facilities that serve multiple swine farms.
(c)	No later than 1 May 1998, the Department of Agriculture shall present the plan developed under this section in a written report to the 1998 Regular Session of the 1997 General Assembly and to the Environmental Review Commission.
Section 12.5.  The Utilities Commission, the Local Government Commission, and the Environmental Management Commission, with the assistance of other State agencies, shall jointly study issues relating to publically owned treatment works that persistently fail to comply with Article 21 of Chapter 143 of the General Statutes, rules adopted pursuant to that Article, or other federal and State laws, regulations, and rules for the protection of public health and the environment.  The Commissions shall make a specific finding as to whether a State agency should assume control of a persistently noncomplying treatment works and, if so, how the State agency would assume control and operate the treatment works.  The Utilities Commission, the Local Government Commission, and the Environmental Management Commission shall jointly present their findings and recommendations, including any legislative proposals, to the 1998 Regular Session of the 1997 General Assembly.

PART XIII.	MISCELLANEOUS PROVISIONS; EFFECTIVE DATES

Section 13.1.  G.S. 143‑215(e) is repealed.
Section 13.2.  The headings to the Parts of this act are a convenience to the reader and are for reference only.  The headings do not expand, limit, or define the text of this act.
Section 13.3.  If any section or provision of this act is declared unconstitutional or invalid by the courts, the unconstitutional or invalid section or provision does not affect the validity of this act as a whole or any part of this act other than the part declared to be unconstitutional or invalid.
Section 13.4.  (a) G.S. 143‑215.8B, as enacted by Section 8.2 of this act, becomes effective when this act becomes law, except that G.S. 143‑215.8B(b) becomes effective 1 January 1998.
(b)	Part IX of this act is effective retroactively as of 1 January 1997.
(c)	Section 11.2 of this act becomes effective 1 January 1998.
(d)	Except as otherwise provided, each section of this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 26th day of August, 1997.
s/	Marc Basnight
President Pro Tempore of the Senate

s/	Harold J. Brubaker
Speaker of the House of Representatives

s/	James B. Hunt, Jr.
Governor

Approved 1:45 p.m. this 27th day of August, 1997

Page 	S.L. 1997-458	House Bill 515

House Bill 515	S.L. 1997-458	Page