Changes As A Result Of The 2009-2010 Legislative Session
Session Law 2010-155 (i.e. House Bill 1765) made several notable changes to the laws governing IBTs.
- Extension of CCPCUA exemption. A 2007 change to the IBT law made the new .22L statute effective for communities in the Central Coastal Plain Capacity Use Area (CCPCUA) on January 1, 2011. Until that date, the "old", .22I statute applies (Figure 1). This session law extends that deadline until January 1, 2013.
- Isolated River Basin exemption. The session law defines four river basins as "isolated river basins": New River (2-6), Shallotte River (9-4), Albemarle Sound (12-1), and White Oak River (17-1). The law allows the old, .22I statute to apply through July 1, 2020 (Figure 1).
- Cost of Conducting Public Hearings. The session law requires the petitioner to pay the costs associated with any public hearing that the EMC is required to hold during the certificate process.
FIGURE 1: Areas of the State Falling Under the .22I Requirements For Obtaining an IBT Certificate
IBT Laws and Rules
North Carolina's General Assembly enacts the laws of the State and the Environmental Management Commission (EMC) with support from the Department of Environmental Quality (DEQ) then creates rules to implement the statutes. The laws are generally codified in the General Statutes and rules are compiled in the Administrative Code. The General Assembly first approved a law to regulate IBTs specifically in 1993. However this, and other laws pertaining to the IBT of surface waters, have been modified numerous times. The current laws pertaining to IBT are as follows:
G.S. §143-215.22L is the current law governing IBTs. This law was ratified by the General Assembly as part of Session Law 2007-518 (i.e. House Bill 820) in the 2007-2008 legislative session. The law establishes very specific procedures that must be followed by a petitioner and the EMC before an IBT certificate may be issued. The Division has developed a guidance document to assist water systems in navigating this process.
G.S. §143-215.22I- REPEALED
This statute was repealed by Session Law 2007-518; however it still pertains to transfers to supplement ground water supplies in the Central Coastal Plain Capacity Use Area (until January 1, 2013), and transfers into defined isolated river basins (until July 1, 2020).
This statute defines the Major River Basins and Sub-basins in NC, both of which constitute "river basins" under the State's IBT law. Note that the "extended" river basin boundaries, defining the extent to which certain entities in other States must be provided public notice of a transfer, are defined in the .22L statute. DWR has developed maps of the designated IBT Basins and extended basins, which are available here.
Session Laws are bills that have been approved by the State House of Representatives and Senate, and signed by the Governor. Once signed, session laws are then generally codified into the General Statutes. In some cases, the entire content of the session law is not codified. Although this does not affect the applicability of the session law, it does make it important to read both the session laws and General Statutes when determining regulatory requirements. The following regulatory IBT requirements are only noted in session laws:
- CCPCUA exemption. When the 2007 law containing the more stringent requirements for obtaining an IBT certificate law was enacted, the General Assembly chose to exempt CCPCUA systems. Session Law 2007-518 made the "old", .22I statute applicble to CCPCUA water systems until January 1, 2011. During the 2009-2010 session, the General Assembly enacted Session Law 2010-155, which extends that deadline until January 1, 2013.
- Isolated River Basin exemption. Session Law 2010-155 defines four river basins as "isolated river basins": New River (2-6), Shallotte River (9-4), Albemarle Sound (12-1), and White Oak River (17-1). This law makes the .22I statute applicable to transfers of water to these isolated basins through July 1, 2020.
The following table provides a history of session laws pertaining to IBT.
|Legislative Session||Session Law||Statute Affected||Description of Changes|
|1989-1990||1989-802||Allows Legislative Research Committee to study IBT, among other topics.|
|1989-954||Establishes a 1 year moratorium on surface water transfers (from July 1990 to July 1991)|
|1991-1992||1991,c. 712, s. 1;||.22H, .22G||Requires registration for surface water transfers and withdrawals of more than 1 million gallons per day on a max-day basis. Also establishes .22G- definition of designated IBT River Basins.|
|1993-1994||1993, c. 344, s. 1;||.22H||Modifies reporting requirements for those entities required to register a withdrawal or transfer. Expands registration requirement to include ground water.|
|1993, c. 348, s. 1||.22G, .22I||Regulation of Surface Water Transfers. Enacts .22I. Certificate required for transfers over 2 MGD. Defines cork rule. Allows DEQ to grant approvals for emergency transfer. Allows Department to assess a civil penalty of not more than $10,000 for those who are required but fail to apply for an IBT certificate, or those who violate the conditions of their certificate.|
|1993, c. 553, s. 81;||.22H||Technical Correction to change terminology from "ground waters" to "groundwaters"|
|1997-1998||1997-443, ss. 11A.119(a), 15.48(b), 15.48(c)||.22G, .22I||Technical correction that makes several changes, including modifying .22G to include portions of defined river basins in other states.|
|1997-524, s. 1||22I||Requires IBT certificate to include any conditions necessary to ensure that detriments of a transfer will be mitigated to a reasonable degree. Imposes a temporary moratorium on new transfers until the Environmental Review Commission has had an opportunity to review issues relating to the transfer of surface waters between river basins. Any findings, reports, or recommendations were to be made in the 1998 Regular Session to the General Assembly.|
|1998?168, s. 3, 4;||.22H, .22I||Adds requirement that transfers may not violate the anti-degradation policy of the state. Requires DWQ basin plans to include cumulative impact of transfers to and from a river basin. Requires registration for withdrawals or transfers of surface or ground water of over 100,000 gpd (except for agricultural withdrawals or transfer, where the threshold remains 1 MGD). Requires the commission to evaluate the cumulative effect of withdrawals as noted in LWSPs. Requires preparation of an environmental document for any petition for a transfer. Requires the inclusion of a drought management plan.|
|1999-2000||2000-138, s.2.1(6)||Allows Legislative Research Commission to study water supply issues such as IBT.|
|2001-2002||2001?474, s.28;||22I||Minor technical correction (verbiage clarification)|
|2007-2008||2007?484, s.43.7C||22I, .22L||Technical correction to Session Law 2007-518 to state that applicants who have already begun the preparation of an Environmental Document will be subject to .22I rather than .22L.|
|2007?518, s. 3;||.22L||Repeals .22I and enacts .22L. Makes significant changes to the regulation of IBTs and increased the burden for obtaining a certificate. Requires ERC to review issues related to transfer of surface waters and to make a final report to the 2009 General Assembly. Requires DWR to develop a River Basin map outlining the extent that each basin extends into adjacent States. Allows systems subject to Central Coastal Plain Capacity Use Area rules to fall under the "old" statutory requirements through January 1, 2010.|
|2008?125, s.1;||.22L||Defines out-of-state notification boundaries.|
|2008?198, s. 11.5., 11.6.||.22L, .22H||Minor technical correction and edit of the out-of-state notification boundaries.|
|2009-2010||2009-574, s. 6.2, 6.3||Allows ERC to continue to study topics such as the effects of intra-basin and interbasin netting and continuation of the Water Allocation Studies.|
|2010-155, s.2, s.3, s.4, s.5||.22L||Requires applicants for an IBT to pay the costs associated with the public hearings held by the EMC on the applicant's request for a certificate. Extends CCPCUA exemption until January 1, 2013. Allows petitioners transferring water to an "isolated river basin" to fall under the requirements in .22I through July 1, 2020.|
North Carolina Administrative Code (NCAC)
The purpose of the State's rules is to implement and interpret the statutes. With respect to IBT, the NCAC provides important rules on the definition of a transfer (.0401 (a)), the "cork rule" (.0401(b)), responsible party (.0401(c)), determination of a system's grandfathered transfer capacity (.0401(d)) and the avenue for judicial review (.0402).
|15A NCAC 02E .0401
|(a)||Pursuant to G.S. 143-215.22G(3), the amount of a transfer shall be determined by the amount of water moved from the source basin to the receiving basin, less the amount of the water returned to the source basin.|
Pursuant to G.S. 143-215.22G(3)(a) and 143-215.22G(3)(b), and notwithstanding the definition of basin in G.S. 143-215.22G(1), the following are not transfers:
|(c)||The withdrawal of surface water from one river basin by one person and the purchase of all or any part of this water by another party, resulting in a discharge to another river basin, shall be considered a transfer. The person owning the pipe or other conveyance that carries the water across the basin boundary shall be responsible for obtaining a certificate from the Commission. Another person involved in the transfer may assume responsibility for obtaining the certificate, subject to approval by the Division of Water Resources.|
|(d)||Under G.S. 143-215.22I(b), a certificate is not required to transfer water from one river basin to another up to the full capacity of a facility to transfer water from one basin to another if the facility was existing or under construction on July 1, 1993. The full capacity of a facility to transfer water shall be determined as the capacity of the combined system of withdrawal, treatment, transmission, and discharge of water, limited by the element of this system with the least capacity as existing or under construction on July 1, 1993.|
|15A NCAC 02E .0402
|Judicial Review of the Commission's decision shall be as provided in G.S. 143-215.5.