GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2003
SESSION LAW 2004-195
SENATE BILL 823
AN ACT to Amend various laws related to the Environment, Environmental Health, and natural resources to: (1) Make clarifying, conforming, and technical amendments; (2) modify environmental reporting requirements; (3) abolish obsolete and inactive councils; (4) Extend by one year the time for the development of permanent rules related to water conservation pursuant to Section 3 of S.L. 2002-167; (5) provide for staggered terms for the members of the agricultural finance authority, to make appointments to the authority, and specify the maximum number of successive terms that members of the Authority may serve; and (6) prohibit the sale or dispensing of raw milk, AND TO PROVIDE FOR FILLING VACANCIES IN LEGISLATIVE APPOINTMENTS IN CERTAIN CIRCUMSTANCES.
The General Assembly of North Carolina enacts:
Part i. technical corrections
SECTION 1.1. G.S. 113-301.1 reads as rewritten:
"§
113-301.1. Wildlife Resources Commission obligated to make efforts to
notify members of the public who may be affected by operative provisions of
statutes and regulations.rules.
(a) The Wildlife
Resources Commission must prepare and distribute to license agents
informational materials relating to hunting, fishing, trapping, and boating
laws and regulations rules administered by the Wildlife Resources
Commission. The materials furnished an agent should be appropriate to the types
of licenses he the agent customarily handles, and in a quantity
reasonably anticipated to be sufficient to meet the needs of licensees
obtaining licenses from the agent.
(b) In issuing new
licenses and permits from the Raleigh office by mail, the Wildlife Resources
Commission must generally inform the licensee or permittee of governing
provisions of law and regulations rules applicable to the type of
license or permit secured. In issuing renewal licenses and permits by mail, the
Wildlife Resources Commission must inform the licensee or permittee of any
substantial changes in the law or regulations which rules that
may affect the activities of the licensee or permittee.
(c) After adopting regulations
which rules that impose new restrictions upon the activities of
members of the public who do not normally hold licenses or permits to engage in
the activity in question, the Wildlife Resources Commission must take
appropriate steps to publicize the new restrictions. These steps may include
press releases to the media, informing local authorities, and other forms of
communication that give promise of reaching the segment of the public affected.
(d) After adopting new
restrictions on hunting, fishing, trapping, or boating at a time other than
when usual annual changes in the regulations rules affecting
those activities are adopted, the Wildlife Resources Commission must take
appropriate steps to publicize the new restrictions in a manner designed to
reach persons who may be affected.
(e) Repealed by Session Laws 1987, c. 827, s. 9."
SECTION 1.2. G.S. 113A-115.1(b) reads as rewritten:
"(b) No person shall
construct a permanent erosion control structure in an ocean shoreline. The
Commission shall not permit the construction of a temporary erosion control
structure that consists of anything other than sandbags in an ocean shoreline.
This section shall not apply to (i) any permanent erosion control structure
that is approved pursuant to an exception set out in a rule adopted by the
Commission prior to 1 July 2003 or (ii) any permanent erosion control structure
that was originally constructed prior to 1 July 1974 and that has since been in
continuous use to protect an inlet that is maintained for navigation. This
section shall not be construed to limit the authority of the Commission to adopt
rules to designate or protect areas of environmental concern, to govern the use
of sandbags, or to govern the use of erosion coastal control structures
in estuarine shorelines."
SECTION 1.3. G.S. 121-34 reads as rewritten:
"§ 121-34. Short title.
The title of this Article shall be known as the "Historic'Conservation
and Historic Preservation and Conservation Agreements Act.' "
SECTION 1.4. G.S. 121-42 reads as rewritten:
"§ 121-42. Citation of Article.
This Article shall be known and may be cited as "Uniform
Conservationthe 'Conservation and Historic Preservation Agreement
Agreements Act.' "
SECTION 1.5. G.S. 143-215.1 reads as rewritten:
"§ 143-215.1. Control of sources of water pollution; permits required.
…
(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 phosphorousphosphorus
is designated by the Commission as a nutrient of concern shall not discharge
more than an average annual mass load of total phosphorousphosphorus
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 phosphorousphosphorus concentration of two milligrams of phosphorousphosphorus
per liter (2.0 mg/l). The total phosphorousphosphorus
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 phosphorousphosphorus that person discharges
by the average annual mass load of total nitrogen and total phosphorousphosphorus
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 phosphorousphosphorus
shall be calculated from the most recent available data. A person to whom this
subsection applies shall comply with nitrogen and phosphorousphosphorus
discharge monitoring requirements established by the Commission. This average
annual load of nitrogen or phosphorousphosphorus 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 phosphorousphosphorus
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 phosphorousphosphorus
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 phosphorousphosphorus
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 phosphorousphosphorus 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 phosphorousphosphorus in the surface
waters, and incorporated into nutrient management plans by the Commission. The
maximum mass load for total nitrogen or total phosphorousphosphorus
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 1.6. G.S. 143-215.1B reads as rewritten:
"§ 143-215.1B.
Extension of date for compliance with nitrogen and phosphorousphosphorus
discharge limits.
…
(d) A permit holder who is granted an extended compliance date under this section shall:
(1) Develop a calibrated
nutrient response model in conjunction with other affected parties and in
accordance with a timetable for the development of the model that has been
approved by the Commission. The model shall be based on current data, capable
of predicting the impact of nitrogen and phosphorousphosphorus in
the surface waters, capable of being incorporated into any nutrient management
plan developed by the Commission, and approved by the Commission.
…."
SECTION 1.7. G.S. 159G-3(18) reads as rewritten:
"(18) 'Wastewater treatment works' means the
various facilities and devices used in the treatment of sewage, industrial
waste or other wastes of a liquid nature, including the necessary interceptor
sewers, outfall sewers, phosphorousphosphorus removal equipment,
pumping, power and other equipment and their appurtenances."
SECTION 1.8. G.S. 159G-10(b)(5) reads as rewritten:
"(5) Wastewater Treatment
Works Improvements to Meet Nitrogen and Phosphorous Phosphorus 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)."
SECTION 1.9. If House Bill 1112, 2003 Regular Session, becomes law, then Section 8 of House Bill 1112 is rewritten to read:
"SECTION 8. Sections 1 through 6 of this act become effective 1 January 2005. Sections 7 and 8 of this act are effective when this act becomes law."
Part ii. modify reporting requirements
SECTION 2.1. Article 4 of Chapter 113A of the General Statutes is amended by adding a new section to read:
"§ 113A-67. Annual report.
The Department shall report to the Environmental Review Commission on the implementation of this Article on or before 1 October of each year. The Department shall include in the report an analysis of how the implementation of the Sedimentation Pollution Control Act of 1973 is affecting activities that contribute to the sedimentation of streams, rivers, lakes, and other waters of the State. The report shall also include a review of the effectiveness of local erosion and sedimentation control programs."
SECTION 2.2. G.S. 113A-235(c) reads as rewritten:
"(c) Report. - The
Department shall report on the implementation of this Article to the
Environmental Review Commission no later than 1 November October of
each year. The Department shall maintain an inventory of all conservation
easements held by the Department. The inventory shall be included in the report
required by this subsection."
SECTION 2.3. G.S. 113A-241(c) reads as rewritten:
"(c) The Secretary of
Environment and Natural Resources shall report to the Governor and the
Environmental Review Commission on or before 1 September October of
each year on the State's progress towards attaining the goal established in
this section."
SECTION 2.4. G.S. 143-215.107C(b) reads as rewritten:
"(b) It shall be the goal
of the State that on and after 1 January 2004 at least seventy-five percent
(75%) of the new or replacement light duty cars and trucks purchased by the
State will be alternative-fueled vehicles or low emission vehicles. The
Department of Administration, the Department of Transportation, and the
Department of Environment and Natural Resources shall jointly develop a plan to
achieve this goal and to fuel and maintain these vehicles. The Department of
Administration shall report on progress in developing and implementing this
plan and achieving this goal to the Environmental Review Commission on 1
September of each year beginning 1 September 2000. For purposes of this
section, a light duty car or truck is one that is rated at 8,500 pounds or less
Gross Vehicle Weight Rating (GVWR)."
SECTION 2.5. G.S. 143-355.1 is amended by adding a new subsection to read:
"(g) The Council shall report on the implementation of this section to the Secretary, the Governor, and the Environmental Review Commission no later than 1 October of each year. The report shall include a review of drought advisories issued by the Council and any recommendations to improve coordination among local, State, and federal agencies; public water systems; and water users to improve the management and mitigation of the harmful effects of drought."
SECTION 2.6. The Department of Environment and Natural Resources shall submit the first report required by G.S. 113A-67, as enacted by Section 2.1 of this act, to the Environmental Review Commission on or before 1 October 2005. The Drought Management Advisory Council shall submit the first report required by G.S. 143-355.1, as enacted by Section 2.5 of this act, to the Secretary of Environment and Natural Resources, the Governor, and the Environmental Review Commission on or before 1 October 2005.
part iii. Abolish inactive councils
SECTION 3.1. G.S. 143-214.6 (Watershed Protection Advisory Council), G.S. 143-215.22J (Scientific Advisory Council on Water Resources and Coastal Fisheries Management established; membership, compensation), and G.S. 143-215.22K (Scientific Advisory Council on Water Resources and Coastal Fisheries Management; functions and responsibilities) are repealed.
SECTION 3.2. G.S. 143-215.8C reads as rewritten:
"§ 143-215.8C. Neuse River Modeling and Monitoring Project reports.
The Primary Investigator or Researcher receiving funding
pursuant to Subsection 14.14(a) of S.L. 1998-212 shall provide progress reports
to the Environmental Review Commission, the Joint Legislative Commission on
Governmental Operations, the Scientific Advisory Council on Water Resources
and Coastal Fisheries Management, and the Fiscal Research Division on 1
January and 1 July of each year until the project or study is complete. Upon
completion of the project or study, the Primary Investigator or Researcher
shall provide a final report to the entities listed above."
SECTION 3.3. G.S. 143-215.8D(a) reads as rewritten:
"(a) The Department of
Environment and Natural Resources and North Carolina State University shall
jointly establish the North Carolina Water Quality Workgroup. The Workgroup
shall work collaboratively with the appropriate divisions of the Department of
Environment and Natural Resources and North Carolina State University, the Scientific
Advisory Council on Water Resources and Coastal Fisheries Management, the
Environmental Management Commission, and the Environmental Review Commission to
identify the scientific and State agency databases that can be used to
formulate public policy regarding the State's water quality, evaluate those
databases to determine the information gaps in those databases, and establish
the priorities for obtaining the information lacking in those databases. The
Workgroup shall have the following duties:
(1) To address specifically the ongoing need of evaluation, synthesis, and presentation of current scientific knowledge that can be used to formulate public policy on water quality issues.
(2) To identify knowledge gaps in the current understanding of water quality problems and fill these gaps with appropriate research projects.
(3) To maintain a web-based water quality data distribution site.
(4) To organize and evaluate existing scientific and State agency water quality databases.
(5) To prioritize recognized knowledge gaps in water quality issues for immediate funding."
SECTION 3.4. G.S. 143-215.8D(e) reads as rewritten:
"(e) The Chair of the
North Carolina Water Quality Workgroup shall report each year by January 30 to the
Scientific Advisory Council on Water Resources and Coastal Fisheries
Management, to the Environmental Review Commission, to the Cochairs of the
House of Representatives and Senate Appropriations Subcommittees on Natural and
Economic Resources, and to the Chancellor of North Carolina State University or
the Chancellor's designee on the previous year's activities, findings, and
recommendations of the North Carolina Water Quality Workgroup."
part iv. Extend the time for development of rules related to water conservation
SECTION 4. Section 3(c) of S.L. 2002-167 reads as rewritten:
"SECTION 3.(c) Rules
adopted pursuant to subsection (a) of this section shall not supercede or
modify existing rules governing water used in the generation of electricity.
This section shall not be construed to authorize the
Commission to adopt temporary rules. The Commission shall adopt permanent rules
so that the rules will become effective following legislative review pursuant
to G.S. 150B-21.3(b) by the 2005 2006 Regular Session of the
2005 General Assembly."
part v. Stagger terms of Agricultural finance authority
SECTION 5.1. G.S. 122D-4 reads as rewritten:
"§ 122D-4. North Carolina Agricultural Finance Authority.
(a) The North Carolina Agricultural Finance Authority, a body politic and corporate, is hereby created within the Department of Agriculture and Consumer Services. The Authority shall be constituted a public agency and an instrumentality of the State for the performance of essential public functions.
(b) The Authority shall
be composed of 10 members. members appointed to three-year terms as
follows:
(1) One member appointed by the Governor to a term that expires on 1 July of years that precede by one year those years that are evenly divisible by three.
(2) One member appointed by the Governor to a term that expires on 1 July of years that are evenly divisible by three.
(3) One member appointed by the Governor to a term that expires on 1 July of years that follow by one year those years that are evenly divisible by three.
(4) One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate to a term that expires on 1 July of years that precede by one year those years that are evenly divisible by three.
(5) One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate to a term that expires on 1 July of years that are evenly divisible by three.
(6) One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate to a term that expires on 1 July of years that follow by one year those years that are evenly divisible by three.
(7) One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives to a term that expires on 1 July of years that precede by one year those years that are evenly divisible by three.
(8) One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives to a term that expires on 1 July of years that are evenly divisible by three.
(9) One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives to a term that expires on 1 July of years that follow by one year those years that are evenly divisible by three.
(10) The Commissioner or the
Commissioner's designee shall serve ex officio, with the same rights and
privileges, including voting rights, as other members. The other nine
members shall be appointed in the following manner:
(1) Three
members appointed by the General Assembly upon the recommendation of the
Speaker of the House under G.S. 120-121;
(2) Three
members appointed by the General Assembly upon the recommendation of the
President Pro Tempore of the Senate under G.S. 120-121; and
(3) Three
members appointed by the Governor.
(c) Members shall
serve for three-year terms. Initial terms shall commence July 1, 1986. Appointed
members shall serve until their successors are appointed and qualify. A
member appointed under subdivisions (1) through (9) of subsection (b) of this
section may be reappointed to no more than two successive three-year terms.
Upon the expiration of a three-year term, a member shall continue to serve
until a successor is appointed and duly qualified as provided by G.S. 128-7.
(d) Vacancies in the offices of any appointed members of the Authority shall be filled in accordance with G.S. 120-122 for the remainder of the unexpired term. No vacant office shall be included in the determination of a quorum. No vacancy in office shall impair the rights of the members to exercise all rights and to conduct official business of the Authority.
(e) The domicile of the Authority shall be the City of Raleigh.
(f) A majority of the members shall constitute a quorum for the transaction of official business. All official actions of the Authority shall require an affirmative vote of a majority of the members present and voting at any meeting.
(g) Members of the
Authority shall not receive any salary for the performance of their duties as
members. Appointed members may be reimbursed for such actual expenses as may
be incurred for travel and subsistence in the performance of official duties
and such per diem as is allowed by law for members of other State boards,
commissions and committees.receive per diem and necessary travel and
subsistence expenses in accordance with the provisions of G.S. 138-5.
(h) The Authority shall meet quarterly and may meet more frequently upon call.
(i) The Authority may delegate to one or more of its members, officers, employees or agents such powers and duties as it may deem proper."
SECTION 5.2. In order to alter the schedule of staggered terms of three years for the North Carolina Agricultural Finance Authority so that the same number of terms will expire each year and to provide for an orderly transition in membership of the Authority to the terms specified in G.S. 122D-4(b), as amended by Section 5.1 of this act, the following provisions shall apply:
(1) The Governor shall appoint a member to serve in the position established by G.S. 122D-4(b)(1) through 1 July 2006.
(2) The Governor shall appoint a member to serve in the position established by G.S. 122D-4(b)(2) through 1 July 2007.
(3) The Governor shall appoint a member to serve in the position established by G.S. 122D-4(b)(3) through 1 July 2008.
(4) George Graham of Lenoir County is appointed to serve in the position established by G.S. 122D-4(b)(4) through 1 July 2006.
(5) James R. Britt of Duplin County is appointed to serve in the position established by G.S. 122D-4(b)(5) through 1 July 2007.
(6) Deborah Mae Johnson of Sampson County is appointed to serve in the position established by G.S. 122D-4(b)(6) through 1 July 2008.
(7) Ira S. Cline of Catawba County is appointed to serve in the position established by G.S. 122D-4(b)(7) through 1 July 2006.
(8) Stan Crowe of Martin County is appointed to serve in the position established by G.S. 122D-4(b)(8) to serve through 1 July 2007.
(9) David Hall of Rowan County is appointed to serve in the position established by G.S. 122D-4(b)(9) through 1 July 2008.
SECTION 5.3. The limitation on the number of successive three-year terms that a member of the North Carolina Agricultural Finance Authority may serve as provided in G.S. 122D-4(c), as amended by Section 5.1 of this act, shall not apply to any person who is a member of the Authority at the time this act becomes effective.
part vi. prohibit sale or dispensing of raw milk
SECTION 6.1. G.S. 130A-274(2) reads as rewritten:
"(2) 'Milk' means the
lacteal secretion practically free from colostrum obtained by the complete milking
of one or more cows or goats.cows, goats, or other lactating animals."
SECTION 6.2. G.S. 130A-279 reads as rewritten:
"§ 130A-279. Sale or dispensing of milk.
Only milk which that is Grade 'A' pasteurized
milk may be sold or dispensed directly to consumers for human
consumption. Raw milk and raw milk products shall be sold or dispensed only
to a permitted milk hauler or to a processing facility at which the processing
of milk is permitted, graded, or regulated by a local, State, or federal
agency. The Commission may adopt rules to provide exceptions for dispensing raw
milk and raw milk products for nonhuman consumption. 'Sale' or 'sold' shall
mean any transaction that involves the transfer or dispensing of milk and milk
products or the right to acquire milk and milk products through barter or
contractual arrangement or in exchange for any other form of compensation
including, but not limited to, the sale of shares or interest in a cow, goat,
or other lactating animal or herd."
PART VII. VACANCIES IN LEGISLATIVE APPOINTMENTS/EXPIRATION OF TERM
SECTION 7. G.S. 120-122 reads as rewritten:
"§ 120-122. Vacancies in legislative appointments.
When a vacancy occurs, other than by the expiration of
term, occurs in any office subject to appointment by the General
Assembly upon the recommendation of the Speaker of the House of
Representatives, upon the recommendation of the President Pro Tempore of the
Senate, or upon the recommendation of the President of the Senate, and the
vacancy occurs either: (i) after election of the General Assembly but before
convening of the regular session; (ii) when the General Assembly has adjourned
to a date certain, which date is more than 20 days after the date of adjournment;
or (iii) after sine die adjournment of the regular session, session;
or (iv) when the term of office expires and a successor has not been appointed,
then the Governor may appoint a person to serve until the expiration of the
term or until the General Assembly fills the vacancy, whichever occurs first.
The General Assembly may fill the vacancy in accordance with G.S. 120-121
during a regular or extra session. When a person is holding over in office
after the expiration of the term, for the purpose of this section that office
may be filled as if it were vacant. Before making an appointment, the
Governor shall consult the officer who recommended the original appointment to
the General Assembly (the Speaker of the House of Representatives, the President
Pro Tempore of the Senate, or the President of the Senate), and ask for a
written recommendation. After receiving the written recommendation, the
Governor must within 30 days either appoint the person recommended or inform
the officer who made the recommendation that he is rejecting the
recommendation. Failure to act within 30 days as required under the provisions
of the preceding sentence shall be deemed to be approval of the candidate, and
the candidate shall be eligible to enter the office in as full and ample extent
as if the Governor had executed the appointment. The Governor shall not appoint
a person other than the person so recommended. Any position subject to initial
appointment by the General Assembly but not filled prior to sine die adjournment
of the Session at which the position was created or adjournment to a date
certain which date is more than 20 days after the date of adjournment of the
session at which the position was created may be filled by the Governor under
this section as if it were a vacancy occurring after the General Assembly had
made an appointment."
part viiI. Effective Date
SECTION 8. This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 17th day of July, 2004.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 12:31 p.m. this 17th day of August, 2004