Bill Text: NC S107 | 2017-2018 | Regular Session | Amended
Bill Title: Streamline Dam Removal
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Passed) 2017-07-20 - Ch. SL 2017-145 [S107 Detail]
Download: North_Carolina-2017-S107-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
S 1
SENATE BILL 107
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Short Title: Streamline Dam Removal. |
(Public) |
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Sponsors: |
Senators Wells, Gunn, B. Jackson (Primary Sponsors); and Woodard. |
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Referred to: |
Rules and Operations of the Senate |
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February 20, 2017
A BILL TO BE ENTITLED
AN ACT to remove safety hazards and restore North carolina's natural riverine resources by facilitating the removal of obsolete and unwanted dams.
The General Assembly of North Carolina enacts:
Exempt certain dam removals from permitting requirements
SECTION 1.(a) G.S. 143‑215.25 reads as rewritten:
"§ 143‑215.25. Definitions.
(1) "Dam" means
aDam. – A structure and appurtenant works erected to impound or
divert water.
(2) "Minimum stream
flow" or "minimum flow" means aMinimum stream flow or
minimum flow. – A stream flow of a quantity and quality sufficient in the
judgment of the Department to meet and maintain stream classifications and
water quality standards established by the Department under G.S. 143‑214.1
and applicable to the waters affected by the project under consideration, and
to maintain aquatic habitat in the length of the stream that is affected.
(3) Professionally supervised dam removal. – The removal of a dam that (i) is not operated primarily for flood control or hydroelectric power generation purposes and (ii) is designed and supervised by a qualified engineer.
(4) Qualified engineer. – An engineer licensed as a professional engineer under Chapter 89C of the General Statutes."
SECTION 1.(b) G.S. 143‑215.27 reads as rewritten:
"§ 143‑215.27. Repair, alteration, or removal of dam.
(a) Before commencing the repair, alteration or removal of a dam, application shall be made for written approval by the Department, except as otherwise provided by this Part. The application shall state the name and address of the applicant, shall adequately detail the changes it proposes to effect and shall be accompanied by maps, plans and specifications setting forth such details and dimensions as the Department requires. The Department may waive any such requirements. The application shall give such other information concerning the dam and reservoir required by the Department, such information concerning the safety of any change as it may require, and shall state the proposed time of commencement and completion of the work. When an application has been completed it may be referred by the Department for agency review and report, as provided by subsection (b) of G.S. 143‑215.26 in the case of original construction. This subsection shall not apply to a professionally supervised dam removal.
...
(c) A professionally supervised dam removal is not subject to the procedures set forth in this section, provided that the person proposing to remove the dam complies with all of the following:
(1) A qualified engineer determines based on good engineering practices that the removal of the dam can be accomplished safely and the removal plan reflects (i) the geomorphology of the streambed upriver and downriver from the dam site and (ii) the most desirable longitudinal profile for the post‑removal stream channel that will minimize physical impacts on riparian landowners.
(2) The person notifies the director of the Division of Energy, Mineral, and Land Resources of the Department of the proposed removal no less than 30 days prior to removal. The notice shall include information identifying the dam, including the stream and county where the dam is located, the dam's height and impoundment capacity, a map showing the dam location and vicinity, and a certification from the owner of the dam that the dam is currently not operated for the purposes of flood control or hydroelectric power generation. The notification and certification required by this subdivision may be provided electronically.
(3) The person notifies the North Carolina Floodplain Mapping Program of the Department of Public Safety and all impacted local governments of the dam removal. The notice shall include a qualified engineer's determination of (i) the removal plan for the dam based on the criteria set forth in subdivision (1) of this subsection and (ii) that the removal will lower or maintain water levels above the location of the dam and will not cause an increase in the risk of flood damage. For purposes of the notice required by this subdivision, an "impacted local government" shall mean any unit of local government that could experience changes to its base floodplain (as defined in G.S. 143‑215.54) as a result of the dam removal."
SECTION 1.(c) G.S. 143‑215.28A reads as rewritten:
"§ 143‑215.28A. Application fees.
(a) In accordance with
G.S. 143‑215.3(a)(1a), the Commission may establish a fee schedule
for processing (i) applications for approvals of construction or removal
of dams issued under this Part.Part and (ii) notifications of
professionally supervised dam removals under G.S. 143‑215.27(c).
In establishing the fee schedule, the Commission shall consider the
administrative and personnel costs incurred by the Department for processing
the applications and notifications and for related compliance
activities. The total amount of fees collected in any fiscal year may not
exceed one‑third of the total personnel and administrative costs incurred
by the Department for processing the applications and for related compliance activities
in the prior fiscal year. An approval fee may not exceed the larger of two
hundred dollars ($200.00) or two percent (2%) of the actual cost of
construction or removal of the applicable dam. A fee for notification of
professionally supervised dam removals under G.S. 143‑215.27(c) may
not exceed the lesser of one half percent (0.5%) of the actual cost of removal
or five hundred dollars ($500.00). The provisions of G.S. 143‑215.3(a)(1b)
do not apply to these fees.
...."
SECTION 1.(d) G.S. 143‑215.30 reads as rewritten:
"§ 143‑215.30. Notice of completion; certification of final approval; notice of transfer.
(a) Immediately Except
as set forth in subsection (d1) of this section, immediately upon
completion, enlargement, repair, alteration or removal of a dam, notice of
completion shall be given the Commission. As soon as possible thereafter
supplementary drawings or descriptive matter showing or describing the dam as
actually constructed shall be filed with the Department in such detail as the
Commission may require.
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(d1) The requirements of this section shall not apply to a professionally supervised dam removal under G.S. 143‑215.27(c) if the person removing the dam provides confirmation of completion of dam removal to the Department within 10 days of completion of the removal.
(e) The owner of a dam shall provide written notice of transfer to the Department within 30 days after title to the dam has been legally transferred. The notice of transfer shall include the name and address of the new dam owner."
SECTION 1.(e) G.S. 143‑215.56 is amended by adding a new subsection to read:
"§ 143‑215.56. Delineation of flood hazard areas and 100‑year floodplains; powers of Department; powers of local governments and of the Department.
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(d) The Department may prepare a floodplain map that identifies the 100‑year floodplain and base flood elevations for an area for the purposes of this Part if all of the following conditions apply:
(1) The 100‑year floodplain and base flood elevations for the area are not identified on a floodplain map prepared pursuant to the National Flood Insurance Program within the previous five years.
(2) The Department determines that the 100‑year floodplain and the base flood elevations for the area need to be identified and the use of the area regulated in accordance with the requirements of this Part in order to prevent damage from flooding.
(3) The Department prepares the floodplain map in accordance with the federal standards required for maps to be accepted for use in administering the National Flood Insurance Program.
(e) Prior to preparing a floodplain map pursuant to subsection (d) of this section, the Department shall advise each local government whose jurisdiction includes a portion of the area to be mapped.
(f) Upon completing a floodplain map pursuant to subsection (d) of this section, the Department shall both:
(1) Provide copies of the floodplain map to every local government whose jurisdiction includes a portion of the 100‑year floodplain identified on the floodplain map.
(2) Submit the floodplain map to the Federal Emergency Management Agency for approval for use in administering the National Flood Insurance Program.
(g) Upon approval of a floodplain map prepared pursuant to subsection (d) of this section by the Federal Emergency Management Agency for use in administering the National Flood Insurance Program, it shall be the responsibility of each local government whose jurisdiction includes a portion of the 100‑year floodplain identified in the floodplain map to incorporate the revised map into its floodplain ordinance.
(h) To the extent permitted by National Flood Insurance Program requirements, a professionally supervised dam removal, as defined in G.S. 143‑215.25, that complies with the requirements of G.S. 143‑215.27(c) shall not be required to submit a Letter of Map Revision to the Department."
private duty to inspect
SECTION 2.(a) G.S. 143‑215.32(a) and G.S. 143‑215.32(a1) are recodified as G.S. 143‑215.32(a1) and G.S. 143‑215.32(a2).
SECTION 2.(b) G.S. 143‑215.32, as recodified by subsection (a) of this section, reads as rewritten:
"§ 143‑215.32. Inspection of dams.
(a) The owner of any dam regulated under this Part, and the owner's heirs, successors, or assigns shall be responsible for regularly inspecting the dam to insure its safety and proper operation and maintenance. The inspection shall be performed by an engineer licensed as a professional engineer under Chapter 89C of the General Statutes, and a report shall be submitted to the Department within 30 days of the inspection. The Department shall specify by rule the inspection frequency, protocol, and reporting format.
(a1) The Nothing in
this section is intended to limit the power of the Department may at
any time to inspect any dam, including a dam that is otherwise exempt
from this Part, upon receipt of a written request of any affected person or
agency, or upon a motion of the Environmental Management Commission. Within
the limits of available funds the Department shall endeavor to provide for
inspection of all dams at intervals of approximately five years.
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(b) If the Department upon inspection or upon receipt of a report required by this section finds that any dam is not sufficiently strong, is not maintained in good repair or operating condition, is dangerous to life or property, or does not satisfy minimum streamflow requirements, the Department shall present its findings to the Commission and the Commission may issue an order directing the owner or owners of the dam to make at his or her expense maintenance, alterations, repairs, reconstruction, change in construction or location, or removal as may be deemed necessary by the Commission within a time limited by the order, not less than 90 days from the date of issuance of each order, except in the case of extreme danger to the safety of life or property, as provided by subsection (c) of this section.
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streamline environmental permitting of dam removal
SECTION 3.(a) G.S. 143‑214.7C reads as rewritten:
"§ 143‑214.7C. Prohibit the requirement of mitigation
for impacts to intermittent streams.certain impacts.
Except as required by federal law,
the Department of Environmental Quality shall not require mitigation for impacts
any of the following:
(1) Impacts to an intermittent stream. For purposes of this section, "intermittent stream" means a well‑defined channel that has all of the following characteristics:
(1)a. It contains
water for only part of the year, typically during winter and spring when the
aquatic bed is below the water table.
(2)b. The flow of
water in the intermittent stream may be heavily supplemented by stormwater
runoff.
(3)c. It often lacks
the biological and hydrological characteristics commonly associated with the
conveyance of water.
(2) Impacts associated with the removal of a dam, when the removal complies with the requirements of Part 3 of this Article."
SECTION 3.(b) The Division of Water Resources of the Department of Environmental Quality shall develop a water quality general certification under section 401 of the Clean Water Act for short term sediment releases associated with the construction phase of a dam removal when all of the following occur:
(1) The removal meets the definition and requirements of a professionally supervised dam removal under G.S. 143‑215.27, as amended by Section 1 of this act.
(2) The applicant for the water quality general certification demonstrates that the sediment to be released has similar or lower level of contamination than sediment sampled from downstream of the dam.
DIRECT THE Environmental Management COMMISSION TO AMEND THE Dam Height RULE TO measure height from the Lowest point on the crest of the dam
SECTION 4.(a) Definitions. – "Dam Height Rule" means 15A NCAC 2K .0223 (Dam Height and Storage Determination) for purposes of this section and its implementation.
SECTION 4.(b) Dam Height Rule. – Until the effective date of the revised permanent rule that the Environmental Management Commission is required to adopt pursuant to subsection (d) of this section, the Commission and the Department of Environmental Quality shall implement the Sediment Criteria Rule, as provided in subsection (c) of this section.
SECTION 4.(c) Implementation. – The Commission shall measure the height of a dam for purposes of dam size classification from the lowest point on the crest of the dam to the lowest point on the downstream toe.
SECTION 4.(d) Additional Rule‑Making Authority. – The Commission shall adopt a rule to amend the Dam Height Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B‑19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2).
SECTION 4.(e) Sunset. – This section expires when permanent rules adopted as required by subsection (d) of this section become effective.
Clean water management trust fund eligibility for certain dam removals
SECTION 5. G.S. 143B‑135.234(c) reads as rewritten:
"(c) Fund Purposes. – Moneys from the Fund are appropriated annually to finance projects to clean up or prevent surface water pollution and for land preservation in accordance with this Part. Revenue in the Fund may be used for any of the following purposes:
(1) To acquire land for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies and establishing a network of riparian greenways for environmental, educational, and recreational uses.
(2) To acquire conservation easements or other interests in real property for the purpose of protecting and conserving surface waters and enhancing drinking water supplies, including the development of water supply reservoirs.
(3) To coordinate with other public programs involved with lands adjoining water bodies to gain the most public benefit while protecting and improving water quality.
(4) To restore previously degraded lands to reestablish their ability to protect water quality.
(4a) To remove obsolete and unwanted dams, where the removal will enhance or restore ecological functions or improve water quality.
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Study Further Streamlining of dam removal
SECTION 6. The Department of Environmental Quality shall study the dam removal process in North Carolina and recommend further changes in statutes or rules to reduce regulatory barriers to the removal of obsolete and unwanted dams and consolidate duplicative permit processes. As part of its study, the Department shall review the dam removal permitting process in New Hampshire, Massachusetts, and Pennsylvania and other states as the Department finds relevant. The Department shall submit its report to the Environmental Review Commission no later than March 1, 2018.
Effective Date
SECTION 7. Section 6 of this act is effective when it becomes law. The remainder of this act becomes effective July 1, 2017.
