GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SESSION LAW 2000-150
Whereas, the hurricanes and associated flooding experienced in Eastern North Carolina in 1999 caused billions of dollars in damage; and
Whereas, some of the structural damage resulting from the floods could have been prevented by requiring development in the floodplain to be elevated above the 100-year floodplain; and
Whereas, harm to the environment could have been minimized by prohibiting certain inappropriate uses in the floodplain; and
Whereas, loss of life and property could have been reduced by preventing certain types of development in the floodplain; and
Whereas, future loss of life and property can be reduced by more effective enforcement of floodplain management regulations; Now, therefore,
The General Assembly of North Carolina enacts:
Section 1. Part 6 of Article 21 of Chapter 143 of the General Statutes reads as rewritten:
"Part 6. Floodway Floodplain Regulation.
"§
143-215.51. Preamble. Purposes.
The purpose purposes of this Part is to specify
means for regulation of artificial obstructions in floodways. are to:
(1) Minimize the extent of floods by preventing obstructions that inhibit water flow and increase flood height and damage.
(2) Prevent and minimize loss of life, injuries, property damage, and other losses in flood hazard areas.
(3) Promote the public health, safety, and welfare of citizens of North Carolina in flood hazard areas.
It is hereby declared that the channel and a portion of
the floodplain of all the State's streams will be designated as a floodway, in
which artificial obstructions may not be placed except in accordance with the
provisions of this Part. The purpose of designating these areas as a
floodway is to help control and minimize the extent of floods by preventing
obstructions which inhibit water flow and increase flood height and damage, and
thereby to prevent and minimize loss of life, injuries, property damage and
other losses (both public and private) in flood hazard areas, and to promote the
public health, safety and welfare of citizens of North Carolina in flood hazard
areas.
"§ 143-215.52. Definitions.
(a) As used in
this Part, unless the context otherwise requires: Part:
(1) 'Artificial
obstruction' means any obstruction which to the flow of water in a
stream that is not a natural obstruction, including any which, that,
while not a significant obstruction in itself, is capable of accumulating
debris and thereby reducing the flood-carrying capacity of the stream.
(1a) 'Base flood' or '100-year flood' means a flood that has a one percent (1%) chance of being equaled or exceeded in any given year. The term 'base flood' is used in the National Flood Insurance Program to indicate the minimum level of flooding to be addressed by a community in its floodplain management regulations.
(1b) 'Base floodplain' or '100-year floodplain' means that area subject to a one percent (1%) or greater chance of flooding in any given year, as shown on the current floodplain maps prepared pursuant to the National Flood Insurance Program or approved by the Department.
(1c) 'Department' means the Department of Crime Control and Public Safety.
(1d) 'Flood hazard area' means the area designated by a local government, pursuant to this Part, as an area where development must be regulated to prevent damage from flooding. The flood hazard area must include and may exceed the base floodplain.
(2) 'Floodway'
means that portion of the channel and floodplain of a stream designated to
provide passage for the 100-year flood, without increasing the elevation of
that flood at any point by more than one foot.
(3) 'Local government'
means any county or municipal corporation. city, as defined in G.S.
160A-1.
(3a) 'Lowest floor', when used in reference to a structure, means the lowest enclosed area, including a basement, of the structure. An unfinished or flood resistant enclosed area, other than a basement, that is usable solely for parking vehicles, building access, or storage is not a lowest floor.
(4) 'Natural obstruction'
includes any rock, tree, gravel, or analogous other natural
matter that is an obstruction and has been located within the floodway 100-year
floodplain by a nonhuman cause.
(4b) 'Secretary' means the Secretary of Crime Control and Public Safety.
(5) 'Stream' means a
watercourse that collects surface runoff from an area of one square mile or
greater. This does not include flooding due to tidal or storm surge on
estuarine or ocean waters.
(6) 'Structure' means a walled or roofed building, including a mobile home and a gas or liquid storage tank.
(b) As used in this Part, the terms 'artificial obstruction' and 'structure' do not include any of the following:
(1) An electric generation, distribution, or transmission facility.
(2) A gas pipeline or gas transmission or distribution facility, including a compressor station or related facility.
(3) A water treatment or distribution facility, including a pump station.
(4) A wastewater collection or treatment facility, including a lift station.
(5) Processing equipment used in connection with a mining operation.
"§
143-215.53. Artificial obstruction prohibited.
The placement of any artificial obstruction in the floodway
of any stream after the floodway has been delineated pursuant to G.S.
143-215.56 is hereby prohibited, except as set forth in G.S. 143-215.54, unless
a permit has been obtained for such artificial obstruction from the responsible
local government. No damageable portion of a structure located outside
the floodway may be below the elevation that would be attained by the 100-year
flood if the stream were contained within the floodway.
"§
143-215.54. Floodway uses. Regulation of flood hazard areas;
prohibited uses.
(a) Local governments
are empowered to A local government may adopt ordinances to regulate
uses in flood hazard areas and grant permits for the use of the
floodways flood hazard areas that are consistent with the purposes
requirements of this Part and for purposes which the State does
not regulate either by a permit or a formal approval system. Part.
(b) The following uses
may be made of floodways as a matter of right flood hazard areas without
a permit issued under this Part: Part, provided that these uses
comply with local land-use ordinances and any other applicable laws or
regulations:
(1) General farming, pasture, outdoor plant nurseries, horticulture, forestry, mining, wildlife sanctuary, game farm, and other similar agricultural, wildlife and related uses;
(2) Ground level loading areas, parking areas, rotary aircraft ports and other similar ground level area uses;
(3) Lawns, gardens, play areas and other similar uses;
(4) Golf courses, tennis courts, driving ranges, archery ranges, picnic grounds, parks, hiking or horseback riding trails, open space and other similar private and public recreational uses.
(5) Land application of waste at agronomic rates consistent with a permit issued under Part 1 or Part 1A of Article 21 of Chapter 143 of the General Statutes or an approved animal waste management plan.
(6) Land application of septage consistent with a permit issued under G.S. 130A-291.1.
(c) New solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities are prohibited in the 100-year floodplain except as authorized under G.S. 143-215.54A(b).
"§ 143-215.54A. Minimum standards for ordinances; variances for prohibited uses.
(a) A flood hazard prevention ordinance adopted by a county or city pursuant to this Part shall, at a minimum:
(1) Meet the requirements for participation in the National Flood Insurance Program and of this section.
(2) Prohibit new solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities in the 100-year floodplain except as authorized under subsection (b) of this section.
(3) Provide that a structure or tank for chemical or fuel storage incidental to a use that is allowed under this section or to the operation of a water treatment plant or wastewater treatment facility may be located in a 100-year floodplain only if the structure or tank is either elevated above base flood elevation or designed to be watertight with walls substantially impermeable to the passage of water and with structural components capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy.
(b) A flood hazard prevention ordinance may include a procedure for granting variances for uses prohibited under G.S. 143-215.54(c). A county or city shall notify the Secretary of its intention to grant a variance at least 30 days prior to granting the variance. A county or city may grant a variance upon finding that all of the following apply:
(1) The use serves a critical need in the community.
(2) No feasible location exists for the location of the use outside the 100-year floodplain.
(3) The lowest floor of any structure is elevated above the base flood elevation or is designed to be watertight with walls substantially impermeable to the passage of water and with structural components capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy.
(4) The use complies with all other applicable laws and regulations.
"§ 143-215.55. Existing
artificial obstructions. Acquisition of existing structures.
Artificial obstructions existing in a floodway on July 1, 1971,
shall not be considered to be in violation of this Part. However, they may not
be enlarged or replaced in part or in whole, without a permit, as provided by
this Part in the case of a proposed artificial obstruction. Local governments
are empowered to A local government may acquire, by purchase,
exchange, or condemnation such existing artificial obstructions if deemed
necessary by the responsible local government for the purpose of avoiding flood
damages. an existing structure located in a flood hazard area in the
area regulated by the local government if the local government determines that
the acquisition is necessary to prevent damage from flooding. The procedure
in all condemnation proceedings pursuant to this section shall conform as
nearly as possible to the procedure provided in Article 3 of Chapter 40A of the
General Statutes.
"§
143-215.56. Delineation of floodway; flood hazard areas and
100-year floodplains; powers of Commission and Department; powers of
local governments. governments and of the Department.
(a) For the purpose of
delineating the floodway a flood hazard area and evaluating the
possibility of flood damages, responsible local governments are empowered
to: a local government may:
(1) Request technical
assistance from the competent State and federal agencies, including the
Army Corps of Engineers, the Soil Conservation Service, Natural
Resource Conservation Service, the Tennessee Valley Authority, the
Federal Emergency Management Agency, the North Carolina Department of Crime
Control and Public Safety, the North Carolina Geodetic Survey, the North
Carolina Geological Survey, and the U.S. Geological Survey, or successor agencies,
and agencies.
(2) Utilize the reports and data supplied by federal and State agencies as the basis for the exercise by local ordinance or resolution of the powers and responsibilities conferred on responsible local governments by this Part.
(b) The Department shall
be empowered to render shall provide advice and assistance to any
local government having responsibilities under this Part. In exercising
this function it shall specifically be authorized to the Department
may furnish manuals, suggested standards, plans, and other technical data; to
conduct training programs; and to give advice and assistance with
respect to handling of particular applications; delineation of flood
hazard areas and the development of appropriate ordinances; but it shall
not be limited to such activities. and provide any other advice and
assistance that the Department deems appropriate. The Department
shall send a copy of every rule adopted to implement this Part to the governing
body of each local government in the State.
(c) A local government
may delineate any floodway flood hazard area subject to its regulation
by showing it on a map or drawing, by a written description, or any combination
thereof, to be designated appropriately and filed permanently with the clerk of
superior court and with the register of deeds in the county where the land
lies. A local government may also delineate a flood hazard area by
reference to a map prepared pursuant to the National Flood Insurance
Program. The Commission may delineate a floodway, in the same
manner and subject to the same requirement, when the reach of a stream in which
a floodway is determined by the Commission to be needed exceeds the
jurisdiction of a single local government. Alterations in the lines
delineated shall be indicated by appropriate entries upon or addition to such
map the appropriate map, drawing, or description. Such
entries Entries or additions shall be made by or under the direction
of the clerk of superior court. Photographic, typed or other copies of such
map the map, drawing, or description, certified by the clerk of
superior court, shall be admitted in evidence in all courts and shall have the
same force and effect as would the original map or description. A local
government or the Commission may provide for the redrawing of any such
map. A redrawn map shall supersede for all purposes the earlier map
or maps which that it is designated to replace upon the filing
and approval thereof as designated and provided above.
(d) If the Commission
determines that the floodway of any stream or stream segment should be
delineated and the use thereof controlled as provided in this Part, and the
local governments within which the stream or segment lies have not delineated
the floodway or controlled uses therein, the Commission shall advise the local
governments of its intent to delineate the floodway, and it shall be the
responsibility of the local governments to control uses therein. At least
30 days prior to the effective date of a rule of the Commission establishing
any floodway, notice of the effective date and copies of the rule shall be
delivered to every affected local government along with copies of all maps and
plans delineating the floodway. Public notice of the rule shall be given
at least 30 days prior to the effective date by publication of a notice once a
week for two successive weeks in a newspaper or newspapers having general
circulation in the county or counties in which each affected local government
lies and by posting a copy of the notice at the courthouse of each such county,
along with a sketch map showing the stream or stream segment affected. The
notice shall be adequate to apprise all interested persons of the nature of the
rules, the effective date thereof, the stream or stream segment affected, and
the manner in which more detailed information may be secured. The Department
may prepare a floodplain map that identifies the 100-year floodplain and base
flood elevations for an area for the purposes of this Part if all of the
following conditions apply:
(1) The 100-year floodplain and base flood elevations for the area are not identified on a floodplain map prepared pursuant to the National Flood Insurance Program within the previous five years.
(2) The Department determines that the 100-year floodplain and the base flood elevations for the area need to be identified and the use of the area regulated in accordance with the requirements of this Part in order to prevent damage from flooding.
(3) The Department prepares the floodplain map in accordance with the federal standards required for maps to be accepted for use in administering the National Flood Insurance Program.
(e) Prior to preparing a floodplain map pursuant to subsection (d) of this section, the Department shall advise each local government whose jurisdiction includes a portion of the area to be mapped.
(f) Upon completing a floodplain map pursuant to subsection (d) of this section, the Department shall both:
(1) Provide copies of the floodplain map to every local government whose jurisdiction includes a portion of the 100-year floodplain identified on the floodplain map.
(2) Submit the floodplain map to the Federal Emergency Management Agency for approval for use in administering the National Flood Insurance Program.
(g) Upon approval of a floodplain map prepared pursuant to subsection (d) of this section by the Federal Emergency Management Agency for use in administering the National Flood Insurance Program, it shall be the responsibility of each local government whose jurisdiction includes a portion of the 100-year floodplain identified in the floodplain map to incorporate the revised map into its floodplain ordinance.
"§ 143-215.57. Procedures in issuing permits.
(a) Responsible local
governments are empowered to A local government may establish
application forms and require such maps, plans, and other information as
necessary for the issuance of permits in a manner consonant with the
objectives of this Part. For this purpose a local government may take
into account anticipated development in the foreseeable future that may be
adversely affected by the obstruction, as well as existing development. They
shall consider the effects of a proposed artificial obstruction in a floodway
stream in creating danger to life and property by:
(1) By water which Water
that may be backed up or diverted by such obstruction; the
obstruction.
(2) By the The danger
that the obstruction will be swept downstream to the injury of others; and others.
(3) By the The injury
or damage at the site of the obstruction itself.
For this purpose they may take into account anticipated
development in the foreseeable future which may be adversely affected by the
obstruction, as well as existing development.
(b) In prescribing
standards and requirements for the issuance of permits under this Part, Part
and in issuing such permits, responsible local governments
shall proceed as in the case of an ordinance for the better government of the
county or municipality, city as the case may be. A municipality
city may exercise the powers granted in this Part not only within
its corporate boundaries but also within the area of its extraterritorial
zoning jurisdiction. A county may exercise the powers granted in this
Part at any place within the county that is outside the zoning
jurisdiction of any municipalities a city in the county. If
a city does not exercise the powers granted in this Part in the city's
extraterritorial zoning jurisdiction, the county may exercise the powers
granted in this Part in the city's extraterritorial zoning jurisdiction. The
county may regulate territory within the zoning jurisdiction of any municipality
city whose governing body, by resolution, agrees to such regulation;
provided, however, that any such the regulation. municipal The
governing body of a city may, upon one year's written notice,
withdraw its approval of the county regulations, and those regulations shall
have no further effect within the municipality's city's jurisdiction.
(c) The local governing
body is hereby empowered to adopt such regulations as it may deem
necessary concerning the form, time, and manner of submission of applications
for permits under this Part. Such These regulations may provide
for the issuance of permits under this Part by the local governing body or by such
an agency as may be designated by said the local
governing body, as prescribed by the governing body. Every final
decision granting or denying a permit under this Part shall be subject to
review by the superior court of the county, with the right of jury trial at the
election of the party seeking review. The time and manner of election of a jury
trial shall be governed by G.S. 1A-1, Rule 38(b) of the Rules of Civil Procedure.
Pending the final disposition of any such an appeal, no action
shall be taken which that would be unlawful in the absence of a
permit issued under this Part.
"§ 143-215.58. Violations and penalties.
(a) Any willful violation of this Part or of any ordinance adopted (or of the provisions of any permit issued) under the authority of this Part shall constitute a Class 1 misdemeanor.
(a1) A local government may use all of the remedies available for the enforcement of ordinances under Chapters 153A and 160A of the General Statutes to enforce an ordinance adopted pursuant to this Part.
(b) Failure to remove any
artificial obstruction or enlargement or replacement thereof, that violates
this Part or any ordinance adopted (or the provision of any permit issued)
under the authority of this Part, shall constitute a separate violation of this
Part for each 10 days day that such the failure
continues after written notice from the county board of commissioners or
municipal governing body. governing body of a city.
(c) In addition to or in
lieu of other remedies, the county board of commissioners or municipal
governing body of a city may institute any appropriate action or
proceeding to restrain or prevent any violation of this Part or of any
ordinance adopted (or of the provisions of any permit issued) under the
authority of this Part, or to require any person, firm or corporation which that
has committed any such a violation to remove a violating
obstruction or restore the conditions existing before the placement of the
obstruction.
"§ 143-215.59. Other approvals required.
(a) The granting of a permit under the provisions of this Part shall in no way affect any other type of approval required by any other statute or ordinance of the State or any political subdivision of the State, or of the United States, but shall be construed as an added requirement.
(b) No permit for the
construction of any structure to be located within a floodway flood
hazard area shall be granted by a political subdivision unless the
applicant has first obtained the permit required by any local ordinance
adopted pursuant to this Part.
"§ 143-215.60. Liability for damages.
No action for damages sustained because of injury or
property damage caused by an a structure or obstruction for
which a permit has been granted under this Part shall be brought against the
State or any political subdivision of the State, or their employees or agents.
"§ 143-215.61. Floodplain management.
The provisions of this Part shall not preclude the imposition
by responsible local governments of land use controls and other regulations in
the interest of floodplain management for the floodplain or the floodway. 100-year
floodplain."
Section 2. G.S.159G-10(b)(1) reads as rewritten:
"(b) Priority Factors. -
All applications for revolving loans or grants under this Chapter eligible for
consideration during each priority period shall be assigned a priority for such
funds by the receiving agency. The priority factors shall be similar to
those developed under the North Carolina Clean Water Bond Act of 1977, as
provided in and modified by this subsection.
(1) General Criteria. -
a. The general criteria provided in 1 NCAC 22.0401 through .0403 on January 1, 1987, shall apply, except that 1 NCAC 22.0401(c) shall apply only to State funds appropriated to match available federal funds.
b. The existence of a comprehensive land-use plan that meets the requirements of subsection (e) of this section is a general criterion for prioritizing which applicants will receive a loan or grant. An applicant that is not authorized to adopt a comprehensive land-use plan but that is located in whole or in part in a local government unit that has adopted a comprehensive land-use plan shall receive the same priority treatment as an applicant that has authority to adopt a comprehensive land-use plan. A comprehensive land-use plan that meets the requirements of subsection (e) of this section and that exceeds the minimum State standards for protection of water resources shall receive more points than a plan that does not exceed those standards. Additional points may be awarded for actions taken toward implementation of a comprehensive land-use plan. These actions may include the adoption of a zoning ordinance or any other measure that significantly contributes to the implementation of the comprehensive land-use plan.
c. The existence of a flood hazard ordinance conforming to the requirements of Part 6 of Article 21 of Chapter 143 of the General Statutes is a general criterion for prioritizing which applicants will receive a loan or a grant. Demonstration, based on the most recent maps prepared pursuant to the National Flood Insurance Program or approved by the Department, that no portion of the applicant's jurisdiction is located within the 100-year floodplain is a general criterion equivalent to the existence of a flood hazard ordinance conforming to the requirements of Part 6 of Article 21 of Chapter 143 of the General Statutes for prioritizing which applicants will receive a loan or a grant."
Section 3. The Environmental Review Commission shall study the need to increase minimum elevation requirements for structures that are located in floodplains, to increase the authority of the Secretary of Crime Control and Public Safety to enforce Part 6 of Article 21 of Chapter 143 of the General Statutes, as amended by Section 1 of this act, to increase protection against the potential recurrence of damage to public and private property that resulted from the hurricanes of 1999, and other measures to reduce the likelihood that public assistance will be needed in response to future hurricanes and other storm events. The Environmental Review Commission shall report its findings and recommendations, including any proposed legislation, to the 2001 General Assembly.
Section 4. The Environmental Management Commission shall study the impacts of development in the river basins of the State on the volume and intensity of stormwater flow and on the resulting intensity, frequency, and duration of flood events. As a part of its study and recommendations, the Commission shall specifically consider means to reduce or eliminate present and future impacts of development. The Environmental Management Commission shall report its findings and recommendations, including any proposed legislation to the Environmental Review Commission no later than 15 February 2001.
Section 5. Sections 1, 3, 4, and 5 of this act are effective when this act becomes law. Section 2 of this act becomes effective 1 July 2001 and applies to loans and grants made on or after that date.
In the General Assembly read three times and ratified this the 13th day of July, 2000.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ James B. Hunt, Jr.
Governor
Approved 9:25 a.m. this 2nd day of August, 2000