NORTH CAROLINA GENERAL ASSEMBLY

1971 SESSION

 

 

CHAPTER 111

SENATE BILL 113

 

 

AN ACT TO AMEND ARTICLE 21 OF CHAPTER 143 OF THE NORTH CAROLINA GENERAL STATUTES, BY PROVIDING FOR RIGHTS OF WITHDRAWAL OF IMPOUNDED WATER.

 

The General Assembly of North Carolina do enact:

 

Section 1.  Article 21 of Chapter 143 of the General Statutes of North Carolina is hereby amended by adding thereto at the end thereof a new part to be numbered Part 5, and to read as follows:

"Part 5. Right of Withdrawal of Impounded Water

"§ 143-215.44.  Right of withdrawal. — (a) A person who lawfully impounds water for the purpose of withdrawal shall have a right of withdrawal of excess volume of water attributable to the impoundment. Within the meaning of this subsection, the word 'purpose' shall include one of several purposes in a multiple purpose impoundment.

(b)        A 'right of withdrawal,' within the meaning of this part, is an interest which establishes a right to withdraw an excess volume of water superior to other interests in the water.

(c)        'Excess volume of water,' within the meaning of this part, is that volume which may be withdrawn from an impoundment or from a watercourse below the impoundment without foreseeably reducing the rate of flow of a watercourse below that which would obtain in that watercourse if the impoundment did not exist.

(d)        'Impound,' within the meaning of this part, shall include but is not limited to financial contributions or the assurance of financial contributions in the construction or operation of an impoundment.

(e)        A 'person,' within the meaning of this part, is any and all persons, including (but not limited to) individuals, firms, partnerships, associations, public or private institutions, municipalities or counties or local government units (as defined in G.S. 143-215.40(b)), governmental agencies, or private or public corporations organized under the laws of this State or any other state or country.

"§ 143-215.45.  Transfer of right of withdrawal. — A person with a right of withdrawal may assign or transfer it in whole or in part to another, subject to those rights of reassignment or transfer by the State specified in G.S. 143-354(11). A person who has a right of withdrawal of excess volume of water by virtue of an assignment or transfer has an interest in water superior to other interests only to the extent that his withdrawal is in accordance with the terms of the assignment or transfer.

"§ 143-214.46.  Exercise of right of withdrawal. — A person may exercise his right of withdrawal by withdrawing directly from the impoundment, from a watercourse below the impoundment, or from both; provided, however, that the exercise of the right of withdrawal shall not require any person other than the holder of said right to incur additional capital expenditures in order to enable the holder of said right to withdraw any excess volume of water from a watercourse below the impoundment.

"§ 143-215.47.  Effect of right of withdrawal on discharges of water. — Neither a right of withdrawal nor any assignment or transfer of said right may be asserted in defense against a claim that the method of releasing or discharging water is improper, that the quality of water has been impaired by the withdrawal or release of the water or by its return to the stream following its use, that water has been diverted without authority from the basin from which it was withdrawn, or that water resulting from augmentation of the natural streamflow to control water quality has been withdrawn.

"§ 143-215.48.  Determining streamflows. — (a) In litigation in which the rate of flow of water that would exist in the absence of an impoundment is in issue, that rate shall be deemed to be the minimum average flow for a period of seven consecutive days that have an average recurrence of once in ten years unless a party to the litigation introduces a calculation that more closely approximates the actual rate. A determination made by the Board of Water and Air Resources (i) of either that minimum average flow, or (ii) that adopts a calculation that more closely approximates the actual rate of flow, and introduced by one of the parties to the litigation, shall be prima facie correct.

(b)        The Board of Water and Air Resources is authorized to make the determinations specified in subsection (a) of this section and to require the submission of such reports and make such inspections as are necessary to permit those determinations.

"§ 143-215.49.  Right of withdrawal for use in community water supply. — A person operating a municipal, county, community or other local water distribution or supply system and having a right of withdrawal may assert that right when its withdrawal is for use in any such water system as well as in other circumstances.

"§ 143-215.50.  Interpretation with other statutes. — Whether rights of withdrawal shall have effect in a capacity use area declared by the Board of Water and Air Resources under the Water Use Act of 1967 shall be in the discretion of the Board. This Act shall be subject to the provisions of the Water and Air Resources Act, and the Dam Safety Law of 1967 notwithstanding Section 3 of this Act."

Sec. 2.  G.S. 143-215.8 is hereby amended by:

(a)        Inserting at line 2 of such section after the word "article" and before the comma the words "or of any regulation of the Board adopted under the authority of this article"; and

(b)        Deleting at lines 3 and 9 of such section the word "the" that precedes the word "penalty" and inserting in lieu thereof the word "any"; so that said section as so amended will read as follows: "Upon violation of any of the provisions of this article or of any regulation of the Board adopted under the authority of this article, the director or the assistant director of the Board may, either before or after the institution of proceedings for the collection of any penalty imposed by this article for such violation, institute a civil action in the superior court in the name of the State upon the relation of the director or the assistant director of the Board for injunctive relief to restrain the violation and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from any penalty prescribed by this article for any violation of same."

Sec. 3.  All laws and clauses of laws in conflict with this Act are hereby repealed.

Sec. 4.  This Act shall take effect from and after ratification.

In the General Assembly read three times and ratified, this the 24th day of March, 1971.