NORTH CAROLINA GENERAL ASSEMBLY

1967 SESSION

 

 

CHAPTER 987

HOUSE BILL 969

 

 

AN ACT TO AMEND THE SMALL WATERSHED LAWS WITH REGARD TO BORROWING BY COUNTIES FOR WATERSHED IMPROVEMENT PROGRAMS; BORROWING BY COUNTIES AND MUNICIPALITIES FOR WATER SUPPLY ASPECTS OF SUCH PROGRAMS; EMINENT DOMAIN POWERS; EXTRATERRITORIAL POWERS; LAND ACQUISITION AUTHORITY; RECREATIONAL EXPENDITURES, AND FISH AND WILDLIFE HABITAT.

 

The General Assembly of North Carolina do enact:

 

Section 1.  G.S. 139-3 is hereby amended by adding thereto at the end thereof the following additional definitions:

"(17)    A 'watershed improvement project' means a project of watershed improvement (whether involving flood prevention, drainage improvement, water supply, soil and water conservation, recreation facilities, fish and wildlife habitat, or other related purposes, singly or in combination) which is underaken:

(a)        By a watershed improvement district under the provisions of Article 2 of Chapter 139 of the General Statutes of North Carolina or any local act granting similar powers.

(b)        By a soil and water conservation district under the provisions of Article 1 of Chapter 139 of the General Statutes or any local act granting similar powers.

(c)        By a drainage district under the provisions of Chapter 156 of the General Statutes or any local act granting similar powers.

(d)        By a county that is carrying out a county watershed improvement program under the provisions of Article 3 of Chapter 139 of the General Statutes or any local act granting similar powers.

(e)        By any combination of the foregoing, acting as joint sponsors of a watershed improvement program."

"(18)    A 'watershed improvement work' means a single feature or facility or portion of a watershed improvement project, such as a water retarding or impoundment structure for one or more authorized watershed purposes or a section of improved stream channel or the land treatment measures associated with a water retarding structure."

Sec. 2.  G.S. 153-77 is amended by adding thereto at the end thereof a new paragraph, to be given an appropriate number, and to read as follows:

"(  )      Construction, reconstruction, installation, extension, alteration and improvement of watershed improvement works or projects installed or operated, or to be installed or operated, by a county under Article 3 of General Statutes Chapter 139 or any local act granting similar powers, including without limitation the acquisition of real and personal property, easements, options, or other interests in real property therefor."

Sec. 3.  G.S. 153-80 is amended by adding thereto at the end thereof a new paragraph to be given an appropriate number, and to read as follows:

"(  )      County watershed improvement works or projects, and acquisition of land or interests in land therefor, 40 years."

Sec. 4.  Article 2 of General Statutes Chapter 139 is hereby amended by adding thereto at the end thereof a new Section, to be given an appropriate number, and to read as follows:

"§ 139-   .  Borrowing by Local Units for Anticipated Water Supplies. (a) Any local unit may issue bonds or other obligations in the manner provided by this Section (and may appropriate and expend funds derived therefrom) for the purpose of financing all or any part of the cost of providing storage capacity for anticipated future or present water supply needs, in conjunction with any watershed improvement work or project.

"(b)      Any two or more local units, each situated in whole or in part in the basin of the same river in which a watershed improvement work or project is located, may issue bonds or other obligations for the purpose stated in subsection (a) of this Section in such amounts as constitute their proportionate parts, respectively, of the estimated cost of such a work or project. The governing bodies of said local units shall jointly determine and agree upon the proportionate part of the estimated cost which each local unit is to bear, taking into consideration the taxable resources of each local unit and such other economic and beneficial factors as deemed pertinent and advisable, and such determination shall be recorded in the minutes of each such body.

"(c)       Such bonds or other obligations of counties shall be issued pursuant to the County Finance Act, as amended: Provided, the amount thereof shall constitute an item to be included in the sum in item (8) of Section 153-84 of said Act in arriving at the net debt for other than school purposes in item (9) of said Section: Provided, further, the provisions of Section 153‑80, 153-82 and 153-103 of said Act shall not apply to such bonds. Such bonds or obligations shall mature at such time or times, not exceeding 40 years from their date, and may be subject to redemption with or without premium as the governing body may by resolution determine, with the approval of the Local Government Commission.

"(d)      Such bonds or other obligations of municipalities shall be issued pursuant to the Municipal Finance Act, 1921, as amended, and the amount thereof shall constitute a deduction from the gross debt under subsection (a)(2) of Section 160-383 of said Act: Provided, the provisions of Sections 160-382 and 160-391 shall not apply to such bonds and such bonds may not be consolidated with bonds authorized by another ordinance as provided in Section 160-380 of said Act. Such bonds or obligations shall mature at such time or times, not exceeding 40 years from their date, and may be subject to redemption with or without premium as the governing body may determine, with the approval of the Local Government Commission.

"(e)       Notwithstanding any other provisions of law, the Local Government Commission may sell any bonds or other obligations issued pursuant to this Section to the United States of America, or any agency thereof, at private sale and without advertisement. The first installment of principal of bonds or other obligations issued under this Section may be made payable not more than 10 years after the date of the bonds or obligations. Accrual of interest may be deferred not more than 10 years. Any such bonds or other obligations may contain appropriate provisions which will authorize the initiation of payments of interest and installments of principal on the bonds on a date not later than 10 years from the date of such bonds or obligations, or on the date when the local unit shall begin to use such local water supplies, whichever date shall occur first. The date on which such use of local water supplies begins shall be determined by the governing body of the local unit issuing such bonds or other obligations, which determination shall be binding and conclusive.

"(f)       If the bonds or other obligations of one or more local units which have agreed upon their proportionate part of the estimated cost, as provided for in subsection (b) of this Section, are required by the laws or the Constitution to be submitted to the voters of such local unit at an election and a majority of said voters voting in said election vote against the issuance of such bonds, the bonds or other obligations of any other local unit which have been duly authorized may be issued in whole or in part only when a sufficient number of local units have agreed upon their proportionate part as provided in subsection (b) of this Section and have duly authorized their bonds or obligations so that the full amount of such estimated cost may be paid.

"(g)       As used in this Section the following terms have the following meanings:

'Local Unit' means any county or municipality.

'Local water supplies' include any municipal or county water supplies' whether or not the purposes served by a particular storage facility financed under this Section initially include service to domestic or any other water supply customers.

'Costs' include the cost of water storage capacity in a structure or facility (or other equivalent costs for water supply purposes) and the cost of facilities for release or withdrawal of water stored for water supply purposes, as well as other installation costs of a structure or facility including costs of real and personal property, easements, options, or other interests in real property, and water rights, engineering and inspection fees, contract administration costs, and costs of conveyance facilities for local water supplies."

Sec. 5.  Article 2 of General Statutes Chapter 139 is hereby amended by adding thereto at the end thereof a new Section to be numbered G.S. 139-38 and to read as follows:

"§ 139-38.  Power of Eminent Domain Conferred on Watershed Improvement Districts. (a) A watershed improvement district shall have the power to acquire by condemnation any interest in land needed in carrying out the purposes of this Act, except interests in land within the boundaries of any project licensed by the Federal Power Commission or interests in land owned or held for use by a public utility as defined in G.S. 62-3. This power may be exercised only after:

"(1)      The district makes application to the Committee, identifying the land sought to be condemned and stating the purposes for which said land is needed; and

"(2)      The Committee finds that the land is sought to be acquired for a proper district purpose. The findings of the Committee shall be conclusive in the absence of fraud, notwithstanding any other provision of law.

"(b)      The Committee shall certify copies of its findings to the applicant district, the State Board and the Clerk of Superior Court of the county or counties wherein any part of the district lies for recordation in the special proceedings thereof.

"(c)       For purposes of this Section:

"(1)      The term 'interest in land' means any land, right of way, right of access, privilege, easement, or other interest in or relating to land. Said 'interest in land' does not include an interest in land which is held or used in whole or in part for a public water supply, unless such 'interest in land' is not necessary or essential for such uses or purposes.

"(2)      A 'description' of land shall be sufficient if the boundaries of the land are described in such a way as to convey an intelligent understanding of the location of the land. In the discretion of the applicant district, boundaries may be described by any of the following methods or any combination thereof: by reference to a map; by metes and bounds; by general description referring to natural boundaries, or to boundaries of existing political subdivisions or municipalities, or to boundaries of particular tracts or parcels of land.

"(3)      'Committee' means the State Soil and Water Conservation Committee.

"(d)      The procedure in all condemnation proceedings pursuant to this Section shall conform as nearly as possible to the procedure provided in G.S. Chapter 40, Article 2, and all Acts amendatory thereof.

"(e)       Interests in land acquired pursuant to this Section may be used in such manner and for such purposes as the trustees of the district deem best. If, in the opinion of the trustees, such lands should be sold, leased or rented, the trustees may do so, subject to the approval of the Committee.

"(f)       All provisions of local acts inconsistent herewith limiting condemnation powers of watershed improvement districts or of counties for county watershed improvement programs are hereby repealed."

Sec. 6.  Article 3 of General Statutes Chapter 139 is hereby amended by adding thereto at the end thereof a new Section to be numbered G.S. 139-44 and to read as follows:

"§ 139-44.  Power of Eminent Domain Conferred on Counties in Certain Cases. A county which has been authorized to levy a watershed improvement tax, whether pursuant to this Article or by local act or otherwise, shall have for purposes of its county watershed improvement program the powers conferred upon watershed improvement districts by G.S. 139-38 (as the same may be amended from time to time), subject to the limitations and procedures prescribed therein. For this purpose, a county shall be considered a watershed improvement district, and the board of county commissioners shall be considered the trustees of the applicant district."

Sec. 7.  Article 3 of General Statutes Chapter 139 is hereby amended by adding thereto at the end thereof a new Section to be given an appropriate number, and to read as follows:

"§ 139-   .  Extraterritorial Powers of Counties. A county which has been authorized to levy a watershed improvement tax, whether pursuant to Article III of General Statutes Chapter 139 or by special act or otherwise, may take any authorized watershed action and may expend funds for any authorized watershed purpose (including acquisition of real and personal property, easements, options, or other interests in real property) outside as well as inside the boundaries of the county, if the board of county commissioners finds that substantial flood prevention, drainage or water supply benefits will accrue to property located within the boundaries of the county as a result of such action or expenditure. The board of county commissioners may delegate to a Watershed Improvement Commission the function of making such findings, either generally or in a particular case."

Sec. 8.  G.S. 139-39 is hereby amended by deleting therefrom the last three words thereof, "within the county".

Sec. 9.  Article 3 of General Statutes Chapter 139 is hereby amended by adding thereto at the end thereof a new Section, to be given an appropriate number, and to read as follows:

"§ 139-   .  Recreational and Related Aspects of Watershed Improvements Programs. (a) Local watershed sponsors may install and maintain recreational facilities and services in connection with watershed improvement works or projects, and may provide areas (including structures) for the conservation and replacement of fish and wildlife habitat. For any of these purposes said sponsors may appropriate and expend funds, may levy taxes and assessments, and may issue bonds and notes, to the same extent as in the case of other authorized watershed activities. Such recreational facilities and services may include but are not limited to any or all of the water-related recreational facilities provided for in subsection (b) of this Section, and parking areas, ingress and egress roads, hiking or nature trails, picnic areas and campsites. No application for watershed planning under Public Law 566 (83rd Congress, United States), as amended, may be approved by the State Soil and Water Conservation Committee until after receipt and consideration of recommendations from the appropriate fish and wildlife agency concerning replacement of fish and wildlife habitat in mitigation of anticipated damages: Provided that this requirement for consideration of fish and wildlife recommendations shall not apply if such recommendations are not received by the State Committee within 30 days after the State Committee requests such recommendations. Within the meaning of this provision the 'appropriate fish and wildlife agency' means the North Carolina Wildlife Resources Commission as to matters within its jurisdiction, and the North Carolina Department of Conservation and Development as to matters within its jurisdiction, or both such agencies as to matters within their concurrent jurisdiction.

"(b)      It is hereby declared that the provisions of this chapter authorizing works of improvement, structures, plans, surveys and investigations for the development of water resources were intended to include water-related recreational facilities, including but not limited to boat launching areas and facilities, bathhouses, campsites and picnic areas adjacent to the water, and other basic facilities for water recreational areas. All expenditures heretofore incurred by any local watershed sponsor for such water-related recreational facilities are hereby validated and confirmed. The proceeds of any tax heretofore approved by the voters of a county for a county watershed improvement program, or authorized by special or local act for a county watershed improvement program, may be expended for such water-related recreational facilities, if the board of county commissioners after a public hearing determines that the proceeds should be so expended. Notice of such hearing shall be published as provided for notices under Article 2 of this chapter. No action based on the alleged invalidity of the expenditures herein confirmed or of the use of tax proceeds herein authorized shall lie after January 1, 1968 to enjoin or contest any such expenditure or any such use of tax proceeds.

"(c)       Within the meaning of this Section 'local watershed sponsors' include watershed improvement districts, soil and water conservation districts, drainage districts, municipalities, and counties undertaking county watershed programs under Article 3 of this chapter or any local act granting similar powers."

Sec. 10.  The first sentence of G.S. 139-41 (a) is hereby amended by inserting in line 4 thereof, following the figure "(3)," and preceding the figure "(5)" the figure "(4)," so that said sentence will read as follows:

"If the majority of the qualified voters voting in such election favor the levying of such tax, then and in that event, the board of county commissioners shall have all powers of soil and water conservation districts as set forth in subdivisions (1), (2), (3), (4), (5), (6), (7), (8) and (10) of G.S. 139-8 (subject to the limitations set forth in subdivision (12) of such Section) concerning flood prevention, development of water resources, flood water and sediment damages, and conservation, utilization and disposal of water." It is hereby declared that the purpose of this Section is to clarify the existing authority of boards of county commissioners to acquire property in connection with county watershed improvement programs. The authority expressed in this Section concerning acquisition, use and disposition of property by counties under the provisions of G.S. 139-41(a)(4) shall be considered to be in addition to the general property acquisition use and disposal powers of counties under G.S. Chapter 153 or otherwise. All expenditures heretofore incurred by counties for property acquisition in connection with county watershed improvement programs are hereby validated and confirmed, as being based upon said general property acquisition powers of counties. The proceeds of any tax heretofore or hereafter approved by the voters of a county for a county watershed improvement program, or authorized by local act for a county watershed improvement program, may be expended for property acquisition in connection with such program.

Sec. 11.  Nothing contained in this Act shall authorize or allow the withdrawal of water from a watershed or stream except to the extent and degree now permissible under the existing common and statute law of this State; nor to change or modify such existing common or statute law with respect to the relative rights of riparian owners or others concerning the use or disposal of water in the streams of this State; nor to authorize a district, its officers or governing body or any other person, firm, corporation (public or private), body politic or governmental agency to utilize or dispose of water except in the manner and to the extent permitted by the existing common and statute law of this State.

Sec. 12.  The authority granted hereinabove is supplemental and additional to any other authority granted by law relating to watershed improvement programs, whether by general or special law.

Sec. 13.  If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Sec. 14.  All laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.

Sec. 15.  This Act shall take effect upon its ratification.

In the General Assembly read three times and ratified, this the 28th day of June, 1967.