NORTH CAROLINA GENERAL ASSEMBLY

1979 SESSION

CHAPTER 964

SENATE BILL 717

AN ACT TO REVISE THE PLANT PROTECTION AND CONSERVATION LAWS.

Whereas, the many different species of native plants found within the borders of North Carolina add to the beauty, interest and cultural variety of the State and also add significantly to the quality of life of our citizens and many visitors; and

Whereas, significant changes in conservation practices, population pressures, recreational activities, public attitudes and botanical knowledge over the past three decades are not reflected in laws originally designed to help preserve the rare, beautiful, or botanically unique elements of our native plant heritage; and

Whereas, current native plant protection laws are inflexible in protecting certain plants no longer in need of protection, and inadequate in failing to provide for more realistic protection of those plants that require additional protection for survival; and

Whereas, the laws are not adequate to prevent the further dangerous reduction in numbers, and possible extinction of certain rare, ecologically restricted, unusual, or botanically unique plants; Now, therefore,

The General Assembly of North Carolina enacts:

Section 1.  A new Article is added to Chapter 106 of the General Statutes to read:

"Article 20.

"Plant Protection and Conservation Act.

"§ 106-202.1.  Definitions. — As used in this Article, unless the context requires otherwise:

(a)        'Board' means the North Carolina Plant Conservation Board as provided in this Article.

(b)        'Commissioner' means the Commissioner of Agriculture.

(c)        'Conserve' and 'conservation' mean to use, and the use of, all methods and procedures for the purposes of increasing the number of individuals of resident species, of plants up to adequate levels to assure their continuity in their ecosystems. These methods and procedures include all activities associated with scientific resource conservation such as research, census, law enforcement, habitat protection, acquisition and maintenance, propagation, and transplantation into unoccupied parts of historic range. With respect to endangered and threatened species, the terms mean to use, and the use of, methods and procedures to bring any endangered or threatened species to the point at which the measures provided for the species are no longer necessary.

(d)        'Endangered species' means any species or higher taxon of plant whose continued existence as a viable component of the State's flora is determined to be in jeopardy by the Board; also, any species of plant determined to be an 'endangered species' pursuant to the Endangered Species Act.

(e)        'Endangered Species Act' means the Endangered Species Act of 1973, Public Law 93-205 (87 Stat. 884), as it may be subsequently amended.

(f)         'Exotic species' means a species or higher taxon of plant not native or naturalized in North Carolina but appearing in the Federal Endangered and Threatened Species list or in the appendices to the International Treaty on Endangered and Threatened Species.

(g)        'Plant' means any member of the plant kingdom, including seeds, roots and other parts or their propagules.

(h)        'Protected plant' means a species or higher taxon of plant adopted by the Board to protect, conserve, and/or enhance the plant species and includes those the Board has designated as endangered, threatened, or of special concern.

(i)         'Resident plant or resident species' means a native species or higher taxon of plant growing in North Carolina.

(j)         'Scientific committee' means the North Carolina Plant Conservation Scientific Committee.

(k)        'Special Concern Species' means any species of plant in North Carolina which requires monitoring but which may be collected and sold under regulations adopted under the provisions of this act.

(l)         'Threatened species' means any resident species of plant which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, or one that is designated as threatened by the Federal Fish and Wildlife Service.

"§ 106-202.2.  Declaration of policy. — The General Assembly finds that the recreational needs of the people, the interests of science, and the economy of the State require that threatened and endangered species of plants and species of plants of special concern be protected and conserved, that their numbers should be enhanced and that propogative techniques be developed for them; however, nothing in this Article shall be construed to limit the rights of a property owner, without his consent, in the management of his lands for agriculture, forestry, development or any other lawful purpose.

"§ 106-202.3.  Creation of Board; membership; terms; chairman; quorum; compensation. — (a) The North Carolina Plant Conservation Board is created within the Department of Agriculture.

(b)        The Board shall consist of seven members who are residents of North Carolina, one of whom represents each of the following:

(1)        The North Carolina Botanical Garden of The University of North Carolina at Chapel Hill;

(2)        the botanical, scientific community in North Carolina;

(3)        the Division of Forest Resources, Department of Natural Resources and Community Development;

(4)        a North Carolina citizens conservation organization;

(5)        the commercial plant production industry in North Carolina;

(6)        the Department of Agriculture;

(7)        the North Carolina public at large.

The Governor shall appoint the first four members enumerated above; the Commissioner shall appoint the remaining three members.

(c)        Initial appointments to the Board shall be made by October 1, 1979. Of the terms of initial appointees, the representatives of the North Carolina Botanical Garden of The University of North Carolina at Chapel Hill, the commercial plant production industry in North Carolina, and a North Carolina citizens conservation organization shall serve two-year terms; all other members shall serve four-year terms. All subsequent terms shall be for four‑year terms.

(d)        All members shall hold their offices until their successors are appointed and qualified. Any vacancy occurring in the membership of the Board prior to the expiration of the term shall be filled for the remainder of the unexpired term. The Commissioner may at any time remove any member from the Board for cause. Each appointment to fill a vacancy in the membership of the Board shall be of a person having the proper credentials for that vacancy and appointed by the proper appointing agency.

(e)        The Board shall select its chairman from its own membership to serve for a term of two years. The chairman shall have a full vote. Any vacancy occurring in the chairmanship shall be filled by the Board for the remainder of the term. The Board may select other officers as it deems necessary.

(f)         Any action of the Board shall require at least four concurring votes.

(g)        Members of the Board who are not State employees shall receive per diem, subsistence and travel allowances authorized by G.S. 138-5; members who are State employees shall receive the subsistence and travel allowances authorized by G.S. 138-6; and members who are also members of the General Assembly shall receive subsistence and travel allowances authorized by G.S. 120-3.1.

"§ 106-202.4.  Powers and duties of the Board. — The Board shall have the following powers and duties: (a) to adopt and publish by July 1, 1980, an endangered species list, a threatened species list and a list of species of special concern, as provided for in G.S. 106‑202.5, identifying each entry by the common name and scientific name and cross‑referencing by family, genus, and species number as found in the current edition of 'The Manual of the Vascular Flora of the Carolinas', or if not found in this edition, as identified by the American Society of Plant Taxonomists;

(b)        to reconsider and revise the lists from time to time in response to public proposals and as the Board deems necessary;

(c)        to conserve and to regulate the collection and shipment of those plant species or higher taxa that are of such similarity to endangered and threatened species that they cannot be easily or readily distinguished from an endangered or threatened species;

(d)        to regulate within the State any exotic species, in the same manner as a resident species if the exotic species is on the Federal Endangered and Threatened Species list or it is listed in the Appendices to the International Treaty to Conserve Endangered and Threatened Species;

(e)        to determine that certain plant species growing in North Carolina, whether or not they are on the endangered or threatened species list, are of special concern and to limit, regulate or forbid sale or collection of these plants;

(f)         to conduct investigations to determine whether a plant should be on the protected plant lists and the requirements for survival of resident species of plants;

(g)        to adopt regulations to protect, conserve and enhance resident and exotic species of plants on the lists, or to otherwise affect the intent of this Article;

(h)        to develop, establish and coordinate conservation programs for endangered species and threatened species of plants, consistent with the policies of the Endangered Species Act, including the acquisition of rights to land or aquatic habitats;

(i)         to enter into and administer cooperative agreements through the Commissioner of Agriculture, in concert with the North Carolina Botanical Garden and other agencies, with the U. S. Department of Interior or other federal, State or private organizations concerning endangered and threatened species of plants and their conservation and management;

(j)         to cooperate or enter into formal agreements with any agency of any other state or of the federal government for the purpose of enforcing any of the provisions of this Article;

(k)        through the Commissioner, to receive funds, donations, grants or other monies, issue grants, enter contracts, employ personnel and purchase supplies and materials necessary to fulfill its duties;

(l)         to promulgate regulations under which the Department of Agriculture may issue permits to licensed nurserymen, commercial growers, scientific supply houses and botanical gardens for the sale or distribution of plants on the protected list provided that the plants are nursery propagated and grown horticulturally from seeds or by vegetative propagation of cuttings, meristems or other similar materials and that the plants bear the grower's permit number.

"§ 106-202.5.  Criteria and procedures for placing plants on protected plant lists. — (a) All native or resident plants which are on the current federal lists of endangered or threatened plants pursuant to the Endangered Species Act have the same status on the North Carolina Protected Plants lists.

(b)        The Board, the Scientific Committee, or any resident of North Carolina may propose to the Department of Agriculture that a plant be added to or removed from a protected plant list.

(c)        If the Board, with the advice of the Scientific Committee, finds that there is any substance to the proposal, it shall publish notice of the proposal in a Department of Agriculture news release.

(d)        The Board shall collect relevant scientific and economic data, concerning any substantial proposal, necessary to determine:

(1)        whether or not any other State or federal agency or private entity is taking steps to protect the plant under consideration;

(2)        the present or threatened destruction, modification or curtailment of its habitat;

(3)        overutilization for commercial, scientific, educational or recreational purposes;

(4)        critical depletion from disease or predation;

(5)        the inadequacy of existing regulatory mechanisms; or

(6)        other natural or man-made factors affecting its continued existence in North Carolina.

The Board, with the advice of the Scientific Committee, shall tentatively determine what action is warranted with regard to each proposal. Notice of the determination shall be given in accordance with the Administrative Procedures Act, G.S. 150A-1 et seq., and in a Department of Agriculture news release and by mail to all persons who have made an annual request to receive notification.

(e)        The Board shall hold at least one public hearing on each substantive proposal, in accordance with the Administrative Procedures Act, G.S. 150A-1 et seq.

(f)         If the Board determines that an emergency situation exists involving the continued existence of a plant species or higher taxon as a viable component of the State's wild flora it may add that species or taxon to the lists following emergency procedures outlined in the Administrative Procedures Act, G.S. 150A-1 et seq.

"§ 106-202.6.  Creation of committee; membership; terms; chairman; meetings; quorum; compensation. — (a) The North Carolina Plant Conservation Scientific Committee is created within the Department of Agriculture.

(b)        The Scientific Committee shall consist of the Directors of The University of North Carolina at Chapel Hill Herbarium, the North Carolina State University Herbarium, the North Carolina Botanical Garden of The University of North Carolina at Chapel Hill, the North Carolina Museum of Natural History and the North Carolina Natural Heritage Program of the Department of Natural Resources and Community Development or their designees, a representative of the North Carolina Association of Nurserymen, Inc., appointed by the Commissioner, and a representative of the Garden Club of North Carolina, Incorporated, the North Carolina Chapter of the Nature Conservancy or the North Carolina Wild Flower Preservation Society, Inc., appointed by the Commissioner. Members shall serve for three-year terms and may succeed themselves.

(c)        The Board shall select a chairman of the Scientific Committee from the Scientific Committee's membership to serve for three years.

(d)        The Scientific Committee may hold its meetings at the North Carolina Botanical Garden of The University of North Carolina at Chapel Hill.

(e)        Any action of the Scientific Committee shall require at least four concurring votes.

(f)         Members of the Scientific Committee who are not State employees may receive per diem, subsistence and travel allowances authorized by G.S. 138-5 if they so request; members who are State employees may receive the subsistence and travel allowances authorized by G.S. 138-6 if they so request; and members who are also members of the General Assembly may receive subsistence and travel allowances authorized by G.S. 120-3.1 if they so request.

"§ 106-202.7.  Powers and duties of the Scientific Committee. — The Scientific Committee shall have the following powers and duties:

(a)        to gather and provide information and data and advise the Board with respect to all aspects of the biology and ecology of endangered and threatened plant species;

(b)        to develop and present to the Board management and conservation practices for preserving endangered or threatened plant species;

(c)        to recommend habitat areas for acquisition to the extent that funds are available or expected;

(d)        to investigate and make recommendations to the Board as to the status of endangered, threatened plant species, or species of special concern;

(e)        to make recommendations to the Board concerning regulation of the collection and shipment of endangered or threatened plant species within North Carolina;

(f)         to review and comment on botanical aspects of environmental impact statements prepared by North Carolina agencies or other agencies as appropriate; and

(g)        to advise the Board on matters submitted to the Scientific Committee by the Board or the Commissioner which involve technical questions and the development of pertinent rules and regulations, and make any recommendations as deemed by the Scientific Committee to be worthy of the Board's consideration.

"§ 106-202.8.  Unlawful act; penalties; enforcement. — (a) It is unlawful:

(1)        to uproot, dig, take or otherwise disturb or remove for any purpose from the lands of another, any plant on a protected plant list without a written permit from the owner which is dated and valid for no more than 180 days and which indicates the species or higher taxon of plants for which permission is granted; except that the incidental disturbance of protected plants during agricultural, forestry or development operations is not illegal so long as the plants are not collected for sale or commercial use;

(2)        to sell, barter, trade, exchange, export, offer for sale, barter, trade, exchange or export or give away for any purpose including advertising or other promotional purpose any plant on a protected plant list, except as authorized according to the rules and regulations of the Board; including those promulgated pursuant to G.S. 106-202.4(1);

(3)        to perform any act specifically prohibited by the rules and regulations of the Board promulgated pursuant to its authority under G.S. 106-202.4.

The illegal movement or distribution of each plant, pursuant to this subsection shall constitute a separate violation.

Each person convicted of violating the provisions of this act, shall be fined not less than one hundred dollars ($100.00), upon the first conviction and not less than five hundred dollars ($500.00) upon a subsequent conviction.

(b)        The Commissioner or any employee of the Department of Agriculture designated by the Commissioner to enforce the provisions of this Article, may enter any place within the State at all reasonable times where plant materials are being grown, transported or offered for sale and require the presentation for inspection of all pertinent papers and records relative to the provisions of this Article, after giving notice in writing to the owner or custodian of the premises to be entered. If he refuses to consent to the entry, the Commissioner may apply to any district court judge and the judge may order, without notice, that the owner or custodian of the place permit the Commissioner to enter the place for the purposes herein stated and failure by any person to obey the order may be punished as for contempt.

(c)        The Commissioner of Agriculture is authorized to apply to the superior court for, and the court shall have jurisdiction upon hearing and, for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of G.S. 106202.8(a), regardless of whether there exists an adequate remedy at law."

Sec. 2.  G.S. 14-128.1 and G.S. 14-129.1 are repealed.

Sec. 3.  There is appropriated from the General Fund to the Department of Agriculture thirty-one thousand sixty-seven dollars ($31,067) for the 1979-80 fiscal year and thirty thousand six hundred forty dollars ($30,640) for the 1980-81 fiscal year, to carry out the provisions of this act.

Sec. 4.  Section 1 of this act is effective upon ratification. Section 2 shall become effective July 1, 1980. Section 3 shall become effective July 1, 1979.

In the General Assembly read three times and ratified, this the 8th day of June, 1979.