20061048 Ver 1_Staff Comments_20060816

ently review each draft Coastal Habitat Protection Plan within 30 days of the date the draft Plan is
'tted by the Secretary. The Environmental Review Commission and the Joint Legislative
remission on Seafood and Aquaculture may submit comments and recommendations on the draft Plan
to the Secretary within 30 days of the date the draft Plan is sdbmitted by the Secretary. (1997-400, s. 3.1;
1997143, s. 11A.119(b).)
Part 4. Environmental Management Commission.
§ 143B-282. Environmental Management Commission -creation; powers and duties.
(a) There is hereby created the Environmental Management Commission of the Department of
Environment and Natural Resources with the power and duty to promulgate rules to be followed in the
protection, preservation, and enhancement of the water and air resources of the State.
(1) Within the limitations of G.S. 143-215.9 concerning industrial health and safety, the
Environmental Management Commission shall have all of the following powers and
duties:
a. To grant a permit or temporary permit, to modify or revoke a permit, and to
refuse to grant permits pursuant to G.S. 143-215.1 and G.S. 143-215.108
with regard to controlling sources of air and water pollution.
b. To issue a special order pursuant to G.S. 143-215.2(b) and G.S. 143-215.110
to any ~ person whom the Commission finds responsible for causing or
contributing to any pollution of water within such watershed or pollution of
the air within the area for which standards have been established.
c. To conduct and direct that investigations be conducted pursuant to G.S.
143-215.3 and G.S. 143-215.108(c)(5).
d. To conduct public hearings, institute actions in superior court, and agree
upon or enter into settlements, all pursuant to G.S. 143-215.3.
e. To direct the investigation of any killing of fish and wildlife pursuant to G.S.
143-215.3.
f. To consult with any person proposing to construct, install, or acquire an air
' or water pollution source pursuant to G.S. 143-215.3 and G.S. 143-215.1 l 1.
g. To encourage local government units to handle air pollution problems and to
provide technical and consultative assistance pursuant to G.S. 143-215.3 and
G.S. 143-215.112.
h. To review and have general oversight and supervision over local air pollution
control programs pursuant to G.S. 143-215.3 and G.S. 143-215.112.
i. To declare an emergency when it finds a generalized dangerous condition of
water or air pollution pursuant to G.S. 143-215.3.
j. To render advice and assistance to local government regarding floodways
pursuant to G.S. 143-215.56.
k. To declare and delineate and modify capacity use areas pursuant to G.S.
143-215.13.
1. To grant permits for water use within capacity use areas pursuant to G.S.
143-215.15.
m. To direct that investigations be conducted when necessary to carry out duties
regarding capacity use areas pursuant to G.S. 143-215.19.
n. To approve, disapprove and approve subject to conditions all applications for
dam construction pursuant to G.S. 143-215.28; to require construction
progress reports pursuant to G.S. 143-215.29.
o. To halt dam construction pursuant to G.S. 143-215.29.
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p• To grant final approval of dam construction work pursuant to G.S.
143-215.30.
q. To have jurisdiction and supervision over the maintenance and operation of
dams pursuant to G.S. 143-215.31.
r. To direct the inspection of dams pursuant to G.S. 143-215.32.
s. To modify or revoke any final action previously taken by the Commission
pursuant to G.S. 143-214.1 and G.S. 143-215.107.
t. To have jurisdiction and supervision over oiI pollution and dry-cleaning
solvent use, contamination, and remediation pursuant to Article 21A of
Chapter 143 of the General Statutes.
u. To administer the State's authority under 33 U.S.C. § 1341 of the federal
Clean Water Act.
v. To approve Coastal Habitat Protection Plans as provided in G.S. 143B-279.8.
(2) The Environmental Management Commission shall adopt rules:
a. For air quality standards, emission control standards and classifications for
air contaminant sources pursuant to G.S. 143-215.107.
b. For water quality standards and classifications pursuant to G.S. 143-214.1
and G.S. ,143-215.
c. To implement water and air quality reporting pursuant to Part 7 of Article 21
of Chapter 143 of the General Statutes.
d. To be applied in capacity use areas pursuant to G.S. 143-215.14.
e. To implement the issuance of permits for water use within capacity use areas
pursuant to G.S. 143-215.15 and G.S. 143-215.16.
f- Repealed by Session Laws 1983, c. 222, s. 3.
g• For the protection of the land and the waters over which this State has
jurisdiction from pollution by oil, oil products and oil by-products pursuant
to Article 21A of Chapter 143.
h. Governing underground tanks used for the storage of oil or hazardous
substances pursuant to Articles 21, 21A, or 21B of Chapter 143 of the
General Statutes, including inspection and testing of these tanks and
certification of persons who inspect and test tanks.
i• To implement the provisions of Part 2A of Article 21 of Chapter 143 of the
General Statutes. '
j. To implement the provisions of Part 6 of Article 21A of Chapter 143 of the
General Statutes.
k. To implement basinwide water quality management plans developed
pursuant to G.S. 143-215.8B.
(3) The Commission is authorized to make such rules, not inconsistent with the laws of
this State, as may be required by the federal government for grants-in-aid for water
and air resources purposes which may be made available to the State by the federal
government. This section is to be liberally construed in order that the State and its
citizens may benefit from such grants-in-aid.
(4) The Commission shall make rules consistent with the provisions of this Chapter. All
rules adopted by the Commission shall be enforced by the Department of
Environment and Natural Resources.
(5) The Environmental Management Commission shall have the power to adopt rules
with respect to any State laws administered under its jurisdiction so as to accept
evidence of compliance with corresponding federal law or regulation in lieu of a
State permit, or otherwise modify a requirement for a State permit, upon findings by
the Commission, and after public hearings, that there are:
-,,.

a. Similar and corresponding or more restrictive federal laws or regulations
which also require an applicant to obtain a federal permit based upon the
same general standards or more restrictive standards as the State laws and
rules require; and
b. That the enforcement of the State laws and rules would require the applicant
to also obtain a State permit in addition to the required federal permit; and
.. That the enforcement of the State laws and rules would be a duplication of
effort on the part of the applicant; and
d. Such duplication of State and federal permit requirements would result in an
unreasonable burden not only on the applicant, but also on the citizens and
resources of the State.
(b) The Environmental Management Commission shall submit quarterly written reports as to its
operation, activities, programs, and progress to the Environmental Review Commission. The
Environmental Management Commission shall supplement the written reports required by this subsection
with additional written and oral reports as may be requested by the Environmental Review Commission.
The Environmental Management Commission shall submit the written reports required by this subsection
whether or not the General Assembly is in session at the time the report is due.
(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.
(e) In appointing the members of the Commission, the appointing authorities shall make every
effort to ensure fair geographic representation of the Commission. (1973, c. 1262, s. 19; 1975, c. 512;
1977, c. 771, s. 4; 1983, c. 222, s. 3; 1985, c. 551, s. 1; 1989, c. 652, s. 2; c. 727, s. 218(128}; 1989 (Reg.
Sess., 1990), c. 1036, s. l; 1991 (Reg. Sess., 1992), c. 990, s. 1; 1993, c. 348, s. 3; 1996, 2nd Ex. Sess., c.
18, s. 27.4(b); 1997-392, s. 2(a), (b); 1997-400, s. 3.2; 1997-443,'s. 11A.119(a); 1997-458, ss. 8.4, 8.5;
1997-496, s. 16; 198-212, s. 14.9H(f); 1999-328, s. 4.13; 2001-424, s. 19.13(a); 2002-165, s. 1.9.)
§ 143B-282.1. Environmental Management Commission -quasi-judicial powers; procedures.
(a) With respect to those matters within its jurisdiction, the Environmental Management
Commission shall exercise quasi judicial powers in accordance with the provisions of Chapter 150B of
the General Statutes. This section and any rules adopted by the Environmental Management Commission
shall govern such proceedings:
(1) Exceptions to recommended decisions in contested cases shall be filed with the
Secretary within 30 days of the receipt by the Secretary of the official record from the
Office of Administrative Hearings, unless additional time is allowed by the chairman
• of the Commission.
(2) Oral arguments by the parties may be allowed by the chairman of the Commission
upon request of the parties.
(3) Deliberations of the Commission shall be conducted in its public meeting unless the
. Commission determines that consultation with its counsel should be held in a closed
session pursuant to G.S. 143-318.11.
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;,
°,.
(b) The final agency decision in contested cases that arise from civil penalty assessments shall be
made by the Commission. In the evaluation of 'each violation, the Commission shall recognize that harm
to the natural resources of the -State arising from the violation of standards or limitations established to
protect those resources may. be immediately observed through damaged resources or may be incremental
or cumulative with no g ..~-~
dams a that_can be immedtately observed or documented: <Penalties up to the
maximum authorized. may be based' on`any-one or combination of the following factors:
(1) The degree and extent- of harm to'the natural resources of.the State, to the public
health;:orao private'property resultingfrom fhe violation;
(2) The duration and, gravity:.of:,the<violation;
(3) The effect on ground or surface water quantity or quality or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money saved by noncompliance;
(6) Whether the violation was committed willfully or intentionally;
(7) The prior record of the violator in complying or failing to comply with programs over
which the Environmental Management Commission has regulatory authority; and
(8) The cost to the State of the enforcement procedures.
' ~~'' The chairman shall appoint a Committee on Civil Penalty Remissions from the members of
the irunission. No member of the Committee on Civil Penalty Remissions may hear or vote on any
matter in which he has an economic interest. The Committee on Civil Penalty Remissions shall make the
final agency decision on remission ~'equests. In determining whether a remission request will be approved,
the Committee shall consider the recommendation of the Secretary and the following factors:
(1) Whether one or more of the civil penalty assessment factors in subsection (b) of this
section were wrongly applied to the detriment of the petitioner;
r2) ~!the~~;the violator: promptly"abated continuing environmental damage resullin
~~,,~r,, °f;e violation; g
(3) Whether the violation was inadvertent or a result of an accident;
(4) Whether the violator had been assessed civil penalties for any previous violations;
(5) Whether payment of the civil penalty will prevent payment for the remaining
necessary remedial actions.
(d) The Committee on Civil Penalty Remissions may remit the entire amount of the penalty only
when the violator has not been assessed civil penalties for previous violations, and when payment of the
civil penalty will prevent payment for the remaining necessary remedial actions.
(e) If any civil penalty has not been paid within 30 days after the final agency decision or court
order has been served on the violator, the Secretary of Environment and Natural Resources shall request
the Attorney General to institute a civil action in the Superior Court of any county in which the violator
resides or has his or its principal place of business to recover the amount of the assessment.
(fl As used in this section, "Secretary" means the Secretary of Environment and Natural
Resources. (1989 (Reg. Sess., 1990), c. 1036, s. 2; 1993 (Reg. Sess., 1994), c. 570, s. 5; 1995 (Reg. Sess.,
19.96), c. 743, s. 21; 1997-443, s. 11A.119(a).)
§ 143B-283. Environmental Management Commission - members; selection; removal;
compensation; gnorum; services.
(a) The Environmental Management Commission shall consist of 13 members appointed by the
Governor. The Governor shall select the members so that the membership of the Commission shall
consist off:
(1) One who shall be a licensed physician with specialized training and experience in the
health effects of environmental pollution;
(2) One who shall, at the time of appointment, be actively connected with the
Commission for Health Services or local board of health or have experience in health
sciences;
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One who shall, at the time of appointment, be actively connected with or have had
experience in agriculture;
(4) One who shall, at the time of appointment, be a registered engineer with specialized
training and experience in water supply or water or air pollution control;
(5) One who shall, at the time of appointment, be actively connected with or have had
experience in the fish and wildlife conservation activities of the State;
(6) One who shall, at the time of appointment, have special training and scientific
expertise in hydrogeology or groundwater hydrology;
(7) Three members interested in water and air pollution control, a ointed
public at large; Pp from the
(8) One who shall, at the time of appointment, be actively emplo ed b
retired from, an industrial manufacturing facility and knowledgeable in the field tof
`' industrial air and water pollution control;
(9) One who shall, at the time of appointment, be actively connected with or have had
experience in pollution control problems of municipal or county government;
(10) One who shall, at the time of appointment, have special training and scientific
expertise in air pollution control and the effects of air pollution; and
(11) One who shall, at the time of appointment, have special training and scientific
expertise in freshwater, estuarine, marine biological, or ecological sciences.
(b) Members appointed by the Governor shall serve terms of office of six years. An
appointment to fill a vacancy on the Commission created by the resignation, dismissal, death or disabilit
of a member shall be for the balance of the unexpired term. The Governor ma rea y
Commission to an additional term if, at the time of the reappointment,ythe pmemberneualife fthe
membership on the Commission under subsection (a) of this section. 9 s for
(bl) The Governor shall have the power to remove any member of the Commission from offic
for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 143B-13 0
Executive Organization Act of 1973. e
f the
(b2) The members of the Commission shall receive per diem and necessary travel and subsistence
expenses in accordance with the provisions of G.S. 138-5.
(b3) A majority of the Commission shall constitute a quorum for the transaction of business.
(b4) All clerical and other services required by the Commission shall be supplied by the Secret
of Environment and Natural Resources.
(c) Nine of the members appointed by the Governor under this section shall be rsons ~
not derive any significant portion of their income from persons subject to permits or enforcement orde
under this Chapter. The Governor shall require adequate disclosure of potential co ~ who do
nflicts of interest by
members. The Governor, by executive order, shall promulgate criteria regarding conflicts of interest rs
disclosure thereof for determining the eligibility of persons under this section and
giving due regard to the
requirements of federal legislation, and for this purpose may promulgate rules, regulations or uidelines
in conformance with those established by any federal agency inte resin g
federal law. rp g and applying provisions of
(d) In addition to the members designated by subsection (a) of this section, the General Assembl
shall appoint six members, three upon the recommendation of the Speaker of the House
Representatives, and three upon the recommendation of the President Pro Tempore of the Se y
of
Appointments by the General Assembly shall be made in accordance with G.S. 120-121, and vacanc~nate.
those appointments shall be filled in accordance with G.S. 120-122. Members a
ppointed by the General
Assembly shall serve terms of ,two years. (1973, c. 1262, s. 20; 1977, c. 771, s. 4. 1 ies in
1158, ss. 5, 6; 1981 (Reg. Sess., 1982), c. 1191, s. 19; 1989, c. 315- c. 72 979, 2nd Sess., c.
18; 1997-381, s. 1; 1997-4-43, s. 11A.119(a); 1998-217 s. 17.2 7. s. 218(129); 1995, c. 490, s.
, 000-172, ss. 4.1, 4.2;.2001-486, s. 2.16.)
r 143B-284. Environmental Management Commission _ officers.
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J
(11) One member appointed by the Commission who has technical or professional
expertise in the area of water resources;
(12) One soil and water conservation district supervisor appointed by the Secretary;
(13) Two members appointed by the Commission who represent the interests of the
environmental and conservation community.
(c) Functions and Duties. -The Advisory Council shall assist the Secretary and the Commission
in an advisory capacity on:
(1) Development of necessary water supply watershed protection rules; and
(2) Such other water supply watershed protection matters as the Council or Secretary
consider appropriate.
(cl) Terms of office and removal from office. -Persons appointed to the Council pursuant to
subdivisions (~) through (13) of subsection (b) of this section shall be appointed for two-year terms and
until their successors are appointed and qualify. All terms shall begin on 1 July of odd numbered years.
Appointments to fill vacancies shall be for the balance of the unexpired term. Vacancies in appointments
made by the General Assembly shall be filled in accordance with G.S. 120-122. The General Assembly
shall have the power, in accordance with G.S 143B-13, to remove any member appointed by it. The
Governor shall have the power, in accordance with G.S. 143B-13, to remove any other member.
(c2) Quorum. - A majority of the Council shall constitute a quorum for the transaction of
business.
(d) Multiple Offices. -Any person who is a member of the Council may hold such membership
concurrently with and in addition to any other elective or appointive office or offices such person is
permitted to hold under G.S. 128-1.1.
(e) Chairman and Vice-Chairman. -The Council shall annually elect a Chairman and
Vice-Chairman from among its members.
(f) Compensation. -Members of the Council who are not State employees shall receive per diem
and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138-5. (1989, c.
426, s. 2, c. 603, s. 2, c. 727, s. 1 9; 2001-452, s. 1.2.)
1 3 214.7. Stormwater runoff rules and programs.
(a) Policy, Purpose and Intent. -The Commission shall undertake a continuing planninb 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
_ _. _ _ _ .-. _ _~ _t___:r_~ ..L..11C..1. ....,rorc .voter cnnnw watPTC }1Pf~C Ail('
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.
(~l) 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
8i

shall be developed to protect existing water uses and assure compliance with water quality standar''
classifications. AState agency or unit of local government may submit to the Commission for its a ~
a stormwater control program for implementation within its jurisdiction. To this end, State agenciesS
adopt rules, and units of local government are authorized to adopt ordinances and regulations necePpr~
establish and enforce stormwater control programs. Units of local government are authorized to crew e o
designate agencies or subdivisions to administer and enforce the programs. Two or more units of loca
government are authorized to establish a joint program and to enter into any agreements that are necess r
for the proper administration and enforcement of the program. 1
azY
(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 stonnwater control programs administered by
State agencies and units of local govemment, on or before 1 October of each year. (1989, c. 447, s. 2;
1995, c. 507, s. 27.8(q); 1997-458, s. 7.1.)
§ 143-214.8. Wetlands Restoration Program: established.
The Wetlands Restoration Program is established within the Department of Environment and Natural
Resources. The Wetlands Restoration Program shall be developed by the Department as a nonregulatory
statewide wetlands restoration program for the acquisition, maintenance, restoration, enhancement, and
creation of wetland and riparian resources that contribute to the protection and improvement of water
quality, flood prevention, fisheries, wildlife habitat, and recreational opportunities. The Wetlands
Restoration Program shall consist of the following components:
(1) Restoration and perpetual maintenance of wetlands.
(2) Development of restoration plans.
(3) Landowner contact and land acquisition.
(4) Evaluation of site plans and engineering studies.
(5) Oversight of construction and monitoring of restoration sites.
(6) Land ownership and management.
(7) Mapping, site identification, and assessment of wetlands functions.
. (8) Oversight of private wetland mitigation banks to facilitate the components of the
Wetlands Restoration Program. (1996, 2nd Ex. Sess., c. 18, s. 27.4(a); 1997-443, s.
11A.119(a).)
§ 143-214.9. Wetlands Restoration Program; pnrposes.
The purposes of the program are as follows:
(1) To restore wetlands functions and values across the State to replace critical functions
lost through historic wetlands conversion and through current and future permitted
impacts. It is not the policy of the State to destroy upland habitats unless it would
further the purposes of the Wetlands Restoration Program.
(2) To provide a consistent and simplified approach to address mitigation requirements
associated with permits or authorizations issued by the United States Army Corps of
Engineers under 33 U.S.C. § 1344.
(3) To streamline the wetlands permitting process, minimize delays in permit decisions,
,and decrease the burden of permit applicants of planning and performing
compensatory mitigation for wetlands losses.
(4) To increase the ecological effectiveness of compensatory mitigation.
(5) To achieve a net increase in wetland acres, functions, and values in each major river
basin.
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0
'a
(6) To foster a comprehensive approach to environmental protection. (1996, 2nd Ex.
Sess., c. 18, s. 27.4(a).)
§ 143-214.10. Wetlands Restoration Program: development and implementation of basinwide
restoration plans.
Develop Basinwide Restoration Plans. -The Department shall develop basinwide plans for wetlands
and riparian area restoration with the goal of protecting and enhancing water quality, flood prevention,
fisheries, wildlife habitat, and recreational opportunities within each of the 17 major river basins in the
State. Beginning July 1, 1997, the Department shall develop and begin implementing a basinwide
restoration plan for each of the 17 river basins in the State in accordance with the basinwide schedule
currently established by the Division of Water Quality. (1996, 2nd Ex. Sess., c. 18, s. 27.4(a).)
§ 143-214.11. Wetlands Restoration Program: compensatory mitigation.
Q, >a~ (a) Definition. -For purposes of this section, the term "compensatory mitigation" means the
restoration, creation, enhancement, or preservation of wetlands or other areas required as a condition of a
fk°~ ~a''~r"~''section 404 permit issued by the United States Army Corps of Engineers.
p~ ~~. (b) Department of Environment and Natural Resources to Coordinate Compensatory Mitigation.
- All compensatory mitigation required by permits or authorizations issued by the United States Army
PC'~(L>~ Corps of Engineers under 33 U.S.C. § 1344 shall be coordinated by the Department consistent with the
basinwide plans for wetlands restoration and rules developed by the Environmental Management
Commission. All compensatory wetlands mitigation, whether performed by the Department or by permit
applicants, shall be consistent with the basinwide restoration plans.
(c) Mitigation Emphasis on Replacing Ecological Function Within Same River Basin. -The
emphasis of mitigation is on replacing functions within the same river basin unless it is demonstrated that
restoration of other areas would be more beneficial to the overall purposes of the Wetlands Restoration
Program.
(d) Compensatory Mitigation Options Available to Applicant. - An applicant may satisfy
compensatory wetlands mitigation requirements by the following actions, if those actions are consistent
with the basinwide restoration plans and also meet or exceed the requirements of the United State Army
Corps of Engineers:
(1) Payment of a fee established by the Department into the Wetlands Restoration Fund
established in G.S. 143-214.12.
(2) Donation of land to the Wetlands Restoration Program or to other public or private
nonprofit conservation organizations as approved by the Department.
(3) 'Participation in a private wetlands mitigation bank.
(4) Preparing and implementing a wetlands restoration plan.
(e) Payment Schedule. - A standardized schedule of per-acre payment amounts shall be
established by the Environmental Management Commission. The monetary payment shall be based on the
ecological functions and values of wetlands permitted to be lost and on the .cost of restoring or creating
wetlands capable of performing the same or similar functions, including directly related costs of wetlands
restoration planning, long-term monitoring, and maintenance of restored areas.
(f) Mitigation Banks. - State agencies and private .mitigation banking companies shall
demonstrate that adequate, dedicated financial surety exists to provide for the perpetual land management
and a hydrological maintenance of lands acquired by the State as mitigation banks, or proposed to the
State as privately operated and permitted mitigation banks. (1996, 2nd Ex. Sess., c. 18, s. 27.4(a);
1997-443, s. 11A.119(a).)
§ 143-214.12. Wetlands Restoration Program: Wetlands Restoration Fund.
(a) Wetlands Restoration Fund. - The Wetlands Restoration Fund is established as a
nonreverting fund within the Department. The Fund shall be treated as a special trust fund and shall be
credited with interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3. The Wetlands
87

ti '
Restoration Fund shall provide a repository for monetary contributions and donations or dedicatio
interests in real property to promote projects for the restoration, enhancement, preservation, or creatio
wetlands and riparian areas and for payments made in lieu of compensato ns of
P ry mitigation as described in
subsection (b) of this section. No funds shall be ex ended from this Fund for an u n of
y p rpose other than those
directly contributing to the acquisition, perpetual maintenance, enhancement, restoration, or creation
wetlands and riparian areas in accordance with the basinwide plan as described in G.S. 1 of
(a 1) The Department may distribute funds from the Wetlands Restoration Fund2d~ e OI to
federal or State agency, a local government, or a private, nonprofit conservation organization to ac '
manage, and maintain real property or an interest in real property for the purposes set out in sub Y a
section (a)
of this section. A recipient of funds under this subsection shall grant a conservation easement i quire,
property or interest in real property acquired with the funds to the De n the real
partment in a form that is acceptable
to the Department. The Department may convey real property or an interest in real property that has be
acquired under the Wetlands Restoration Program to a federal or State agency, a local government or
private, nonprofit conservation organization to acquire, manage, and maintain real propert or an i en
in real property for the u a
p rposes set out in subsection (a) of this section. A grantee of real property or an
interest in real property under this subsection shall grant a conservation easement in the real ro
interest in real property to the Department in a form that is acceptable to the Department.
(b) Authorized Methods of Payment. - A person subject to a e P Perty or
the United States Army Corps of Engineers under 33 U.S.C. § 1344, may tcontribute totthe 1W ued by
Restoration Program, to comply with conditions to, or terms of the a etlands
participation in the Wetlands Restoration Program will meet the mitigation requirements of the Un'
States Army Corps of Engineers. The Department shall, at the discre ' P rmit or authorization, if
into the Wetlands Restoration Fund in lieu of other compensato ited
tion of the applicant, accept payment
authorizations issued by the United States Arm rY mitigation requirements of any
contributions will meet the Y Corps of Engineers under 33 U.S.C. § 1344 if the
Payment may be made in the form of monetaryrconttributions accordin fates Arm
the Environmental Maria ement Co Y Corps of Engineers.
g mmission or in the form of donationsoof realschoedert established by
the property is approved by the Department as a suitable site consistent with the basinwidevided that
restoration plan. wetlands
(c) Accounting of Payments. -The Department shall provide an itemized statement that accou
nts
for each payment into the Fund. The statement shall include the expenses and activities financed
payment. (1996, 2nd Ex. Sess., c. 18, s. 27.4(a); 1997-496, s. 13; 1999-329, s. 6.1.) by the
§ 143-214.13. Wetlands Restoration Program: reporting requirement.
(a) The Department of Environment and Natural Resources shall. report each year b Nove
1 to the Environmental Review Commission regarding its progress in implementin the W
Restoration Pro Y tuber
gram and its use of the funds in the Wetlands Restoration Fund. The report shall document
statewide wetlands losses and gains and compensato
P under G.S. 143-214.8
through G.S. 143-214.12. The report shall also provide accotunting of receipts and disbur'semen
Wetlands Restoration' Fund, an analysis of the per-acre cost of wetlands restoration is of the
comparison on a per-acre basis between the State's Wetlands Restoration Pro ~ and a cost
banks. The Department shall also send a co 1~'~ and private mitigation
Assembly. Py of its report to the Fiscal Research Division of the General
(b) The Department shall maintain an inventory of all property that is held, managed, main
enhanced, restored, or used to create wetlands under the Wetlands Restoration Program. The i
shall also list all conservation easements held b tamed,
y e Department. The inventory shall be included in the
annual report required under subsection (a) of this section. (1996, 2nd Ex. Sess. c nventory
1997-443, s. 11A.119(a); 1999-329, s. 6.2.) 18, s. 27.4(a);
§ 143-214.14. Cooperative State-local coalition water quality protection plans,
(a) Definitions. -The following definitions apply in this section:
88

150B-23 within 30 days after the order is issued. If the person affected does not file a petition within the
required time, the order is final and is not subject to review.
(c) Repealed by Session Laws 1987, c. 827, s. 160.
(d) Effect of Compliance. -Any person who installs a treatment works for the purpose of
alleviating or eliminating water pollution in compliance with the terms of, or as a result of the conditions
specified in, a permit issued pursuant to G.S. 143-215.1, or a special order, consent special order,
assurance of voluntary compliance or similar document issued pursuant to this section, or a final decision
of the Commission or a court rendered pursuant to either of said sections, shall not be required to take or
refrain from any further action nor be required to achieve any further results under the terms of this or any
other State law relating to the control of water pollution, for a period to be fixed by the Commission or
court as it shall deem fair and reasonable in the light of all the circumstances after the date when such
special order, consent special order, assurance of voluntary compliance, other document, or decision, or
the conditions of such permit become finally effective, if:
(1) The treatment works result in the elimination or alleviation of water pollution to the
extent required by such permit, special order, consent special order, assurance of
voluntary compliance or other document, or decision and complies with any other
terms thereof; and
(2) Such person complies with the terms and conditions of such permit, special order,
consent special order, assurance of voluntary compliance, other document, or
decision within the time limit, if any, specified therein or as the same may be
extended, and thereafter remains in compliance. (1951, c. 606; 1955, c. 1131, s. 2;
1967, c. 892, s. l; 1973, c. 698, s. 3; c. 1262, s. 23; 1975, c. 19, s. 52; 1979, c. 889;
1987, c. 827, ss. 154, 160; 1989, c. 426, s. 3; c. 766, s. l; 1995 (Reg. Sess., 1996), c.
626, s. 3.)
§ 143-215.3. General powers of Commission and Department; auxiliary powers.
(a) Additional Powers. - In addition to the specific powers prescribed elsewhere in this Article,
and for the purpose of carrying out its duties, the Commission shall have the power:
(1) To make rules implementing Articles 21, 21A, 21B, or 38 of this Chapter.
(la) To adopt fee schedules and collect fees for the following:
a. Processing of applications for permits or registrations issued under Article
21, other than Parts 1 and lA, Articles 21A, 21B, and 38 of this Chapter;
b. Administering permits or registrations issued under Article 21, other than
Parts 1 and lA, Articles 21A, 21B, and 38 of this Chapter including
monitoring compliance with the terms of those permits; and
c. Reviewing, processing, and publicizing applications for construction grant
awards under the Federal Water Pollution Control Act.
No fee may be charged under this provision, however, to a farmer who submits an
application that pertains to his farming operations.
(lb) The fee to be charged pursuant to G.S. 143-215.3(a)(la) for processing an application
for a permit under G.S. 143-215.108 and G.S. 143-215.109 of Article 21B of this
Chapter may not exceed five hundred dollars ($500.00). The fee to be charged
pursuant to G.S. 143-215.3(a)(la) for processing a registration under Part 2A of this
Article or Article 38 of this Chapter may not exceed fifty dollars ($50.00) for any
single registration. An additional fee of twenty percent (20%) of the registration
processing fee may be assessed for a late registration under Article 38 of this
Chapter. The fee for administering and compliance monitoring under Article 21,
other than Parts 1 and lA, and G.S. 143-215.108 and G.S. 143-215.109 of Article
21B shall be charged on an annual basis for each year of the permit term and may not
exceed one thousand five hundred dollars ($1,500) per year. Fees for processing all
permits under Article 21A and all other sections of Article 21B shall not exceed one
106

(lc)
(ld)
hundred dollars ($100.00) for any single permit. The total payment for fees that are
set by the Commission under this subsection for all permits for any single facility
shall not exceed seven thousand five hundred dollars ($7,500) per year, which
amount shall include all application fees and fees for administration and compliance
monitoring. A single facility is defined to be any contiguous area under one
ownership and in which permitted activities occur. For all permits issued under these
Articles where a fee schedule is not specified in the statutes, the Commission, or
other commission specified by statute shall adopt a fee schedule in a rule following
the procedures established by the Administrative Procedure Act. Fee schedules shall
be established to reflect the size of the emission or discharge, the potential impact on
the environment, the staff costs involved, relative costs of the issuance of new
permits and the reissuance of existing permits, and shall include adequate safeguards
to prevent unusual fee assessments which would result in serious economic burden
on an individual applicant. A system shall be considered to allow consolidated annual
payments for persons with multiple permits. In its rulemaking to establish fee
schedules, the Commission is also directed to consider a method of rewarding
facilities which achieve full compliance with administrative and self-monitoring
reporting requirements, and to consider, in those cases where the cost of renewal or
amendment of a permit is less than for the original permit, a lower fee for the renewal
or amendment.
Moneys collected pursuant to G.S. 143-215.3(a)(la) shall be used to:
a. Eliminate, insofar as possible, backlogs of permit applications awaiting
agency action;
b. Improve the quality of permits issued;
c. Improve the rate of compliance of permitted activities with environmental
standards; and
d. Decrease the length of the processing period for permit applications.
The Commission may adopt and implement a graduated fee schedule sufficient to
cover all direct and indirect costs required for the State to develop and administer a
permit program which meets the requirements of Title V. The provisions of
subdivision (lb) of this subsection do not apply to the adoption of a fee schedule
under this subdivision. In adopting and implementing a fee schedule, the Commission
shall require that the owner or operator of all air contaminant sources subject to the
requirement to obtain a permit under Title V to pay an annual fee, or the equivalent
over some other period, sufficient to cover costs as provided in section 502(b)(3)(A)
of Title V. The fee schedule shall be adopted according to the procedures set out in
Chapter 150B of the General Statutes.
a. The total amount of fees collected under the fee schedule adopted pursuant to
this subdivision shall conform to the requirements of section 502(b)(3)(B) of
Title V. No fee shall be collected for more than 4,000 tons per year of any
individual regulated pollutant, as defined in section 502(b)(3)(B)(ii) of Title
V, emitted by any source. Fees collected pursuant to this subdivision shall be
credited to the Title V Account.
b. The Commission may reduce any permit fee required under this section to
take into account the financial resources of small business stationary sources
as defined under Title V and regulations promulgated by the United States
Environmental Protection Agency.
c. When funds in the Title V Account exceed the total amount necessary to
cover the cost of the Title V program for the next fiscal year, the Secretary
shall reduce the amount billed for the next fiscal year so that the excess funds
107

are used to supplement the cost of administering the Title V permit program
in that fiscal year.
(le) The Commission shall collect the application, annual, and project fees for processing
and administering permits, certificates of coverage under general permits, and
certifications issued under Parts 1 and lA of this Article and for compliance
monitoring under Parts 1 and lA of this Article as provided in G.S. 143-215.3D and
G.S. 143-215.1OG.
(2) To direct that such investigation be conducted as it may reasonably deem necessary
to carry out its duties as prescribed by this Article or Article 21A or Article 21B of
this Chapter, and for this purpose to enter at reasonable times upon any property,
public or private, for the purpose of investigating the condition of any waters and the
discharge therein of any sewage, industrial waste, or other waste or for the purpose of
investigating the condition of the air, air pollution, air contaminant sources,
emissions, or the installation and operation of any air-cleaning devices, and to require
written statements or the filing of reports under oath, with respect to pertinent
questions relating to the operation of any air-cleaning device, sewer system, disposal
system, or treatment works. In the case of effluent or emission data, any records,
reports, or information obtained under this Article or Article 21A or Article 21B of
this Chapter shall be related to any applicable effluent or emission limitations or
toxic, pretreatment, or new source performance standards. No person shall refuse
entry or access to any authorized representative of the Commission or Department
who requests entry for purposes of inspection, and who presents appropriate
credentials, nor shall any person obstruct, hamper or interfere with any such
representative while in the process of carrying out his official duties.
(3) To conduct public hearings and to delegate the power to conduct public hearings in
accordance with the procedures prescribed by this Article or by Article 21B of this
Chapter.
(4) To delegate such of the powers of the Commission as the Commission deems
necessary to one or more of its members, to the Secretary or any other qualified
employee of the Department. The Commission shall not delegate to persons other
than its own members and the designated employees of the Department the power to
conduct hearings with respect to the classification of waters, the assignment of
classifications, air quality standards, air contaminant source classifications, emission
control standards, or the issuance of any special order except in the case of an
emergency under subdivision (12) of this subsection for the abatement of existing
water or air pollution. Any employee of the Department to whom a delegation of
power is made to conduct a hearing shall report the hearing with its evidence and
record to the Commission.
(5) To institute such actions in the superior court of any county in which a violation of
this Article, Article 21B of this Chapter, or the rules of the Commission has occurred,
or, in the discretion of the Commission, in the superior court of the county in which
any defendant resides, or has his or its principal place of business, as the Commission
may deem necessary for the enforcement of any of the provisions of this Article,
Article 21B of this Chapter, or of any official action of the Commission, including
proceedings to enforce subpoenas or for the punishment of contempt of the
Commission.
(6) To agree upon or enter into any settlements or compromises of any actions and to
prosecute any appeals or other proceedings.
(7) To direct the investigation of any killing of fish and wildlife which, in the opinion of
the Commission, is of sufficient magnitude to justify investigation and is known or
believed to have resulted from the pollution of the waters or air as defined in this
108

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