S160 [Edition 3]

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2015

S 3

SENATE BILL 160

Corrected Copy 3/5/15

Appropriations/Base Budget Committee Substitute Adopted 4/1/15

Short Title: Enhance Safety & Commerce for Ports/Inlets.		(Public)
Sponsors:
Referred to:

March 4, 2015

A BILL TO BE ENTITLED

AN ACT to provide for the dredging and maintenance of the state's waterways in order to enhance safety and commerce.

The General Assembly of North Carolina enacts:

PART I. SHALLOW DRAFT NAVIGATION FUND AMENDMENTS

SECTION 1.(a) G.S. 143‑215.73F reads as rewritten:

"§ 143‑215.73F. Shallow Draft Navigation Channel Dredging and Lake Maintenance Fund.

(a) Fund Established. – The Shallow Draft Navigation Channel Dredging and Lake Maintenance Fund is established as a special revenue fund. The Fund consists of fees credited to it under G.S. 75A‑3, 75A‑38, and ~~105‑449.126.~~105‑449.126, and monies contributed by a non‑State entity designated for a particular dredging project or group of projects.

(b) Uses of the Fund. – Revenue in credited to the Fund may only be used for the following purposes:

(1) to To provide the State's share of the costs associated with ~~any~~ a dredging project designed to keep shallow draft navigation channels located in State waters or waters of the ~~state~~ State located within lakes navigable and ~~safe,~~ safe.

(2) ~~or for~~For aquatic weed control projects in waters of the State located within lakes under Article 15 of Chapter 113A of the General Statutes. Funding for aquatic weed control projects is limited to five hundred thousand dollars ($500,000) in each fiscal year.

(c) Conditions on Funding. – ~~Any~~ Unless otherwise provided in this subsection, any project funded by revenue ~~from~~ credited to the Fund from the fees described in subsection (a) of this section must be cost‑shared with non‑State dollars on a one‑to‑one ~~basis, provided that the~~basis.

(1) The non‑State cost‑share required by this subsection may also be provided by monies contributed to the Fund by a non‑State entity.

(2) The cost‑share for a lake located within a component of the State Parks System shall be provided by the Division of Parks and Recreation of the Department of Environment and Natural Resources. The Division of Parks and Recreation may use funds allocated to the State Parks System for capital projects under G.S. 113‑44.15 for the cost‑share.

(d) Waiver of Cost‑Share. – The Secretary may waive or modify the non‑State cost‑share requirement for dredging projects that (i) alleviate a navigational emergency; or (ii) represent an opportunity to supplement or leverage Corps funding.

(e) Return of Non‑State Entity Funds. – Non‑State entities that contribute to the Fund for a particular project or group of projects may make a written request to the Secretary that the contribution be returned if the contribution has not been spent or encumbered within two years of receipt of the contribution by the Fund. If the written request is made prior to the funds being spent or encumbered, the Secretary shall return the funds to the entity within 30 days after the later of (i) receiving the request, or (ii) the expiration of the two‑year period described by this subsection.

(f) Reporting. – The Secretary shall report any waivers or modifications of the cost‑share requirement made under subsection (d) of this section within 30 days of issuing the waiver or modification to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division of the General Assembly. The report shall include an explanation of the factors in subsection (d) of this section that are the basis for the waiver or modification decision.

(g) Definitions. – ~~For purposes of this section, "shallow draft navigation channel" means~~The following definitions apply in this section:

(1) Corps. – The United States Army Corps of Engineers.

(2) Costs associated with a dredging project. – Includes the cost of the dredging operation, surveys or studies directly attributable to the project, and the costs of disposal of dredged material.

(3) Navigational emergency. – With respect to a shallow draft navigation channel, the removal of or statement of intent to remove one or more navigational buoys by the United States Coast Guard from the channel due to shoaling.

(4) Shallow draft navigation channel. – (i) a waterway connection with a maximum depth of 16 feet between the Atlantic Ocean and a bay or the Atlantic Intracoastal Waterway, (ii) a river entrance to the Atlantic Ocean through which tidal and other currents flow, or (iii) other interior coastal waterways. ~~"Shallow draft navigation channel"~~The term includes the Atlantic Intracoastal Waterway and its side channels, Beaufort Harbor, Bogue Inlet, Carolina Beach Inlet, the channel from Back Sound to Lookout Back, channels connected to federal navigation channels, Lockwoods Folly River, Manteo/Shallowbag Bay, including Oregon Inlet, Masonboro Inlet, New River, New Topsail Inlet, Rodanthe, Rollinson, Shallotte River, Silver Lake Harbor, and the waterway connecting Pamlico Sound and Beaufort Harbor."

SECTION 1.(b) Of the funds appropriated to the Department of Commerce Job Catalyst Fund (Budget Code 14600‑1912) for the 2014‑2015 fiscal year, the sum of six million dollars ($6,000,000) shall be transferred to the Shallow Draft Navigation Channel Dredging and Lake Maintenance Fund established pursuant to G.S. 143‑215.73F within 10 days of the effective date of this act.

SECTION 1.(c) Notwithstanding G.S. 143‑215.73F, the funds available in the Shallow Draft Navigation Channel Dredging and Lake Maintenance Fund shall be reserved for all of the following purposes:

(1) The sum of four million dollars ($4,000,000) shall be reserved for Oregon Inlet dredging needs.

(2) The sum of one hundred fifty thousand dollars ($150,000) shall be reserved to reimburse the Department of Administration for its costs associated with exploring options for acquiring Oregon Inlet and the adjacent real property, including, but not limited to, surveys and appraisals, legal research, and studies related to sand management, engineering proposals, and larval transport.

(3) The sum of one million dollars ($1,000,000) shall be reserved to reimburse the Department of Administration for its costs associated with the implementation of Section 14.7(g) of S.L. 2014‑100.

The conditions on funding set out in G.S. 143‑215.73F(c) may not be waived pursuant to G.S. 143‑215.73F(d) for funds reserved for the Oregon Inlet dredging needs set out in subdivision (1) of this section. If State funds reserved for the purposes listed above are not spent or encumbered by June 30, 2016, the State funds shall be unreserved and made available for any of the uses set out in G.S. 143‑215.73F.

PART II. DEEP DRAFT NAVIGATION CHANNEL DREDGING AND MAINTENANCE FUND

SECTION 2.(a) Article 21 of Chapter 143 of the General Statutes is amended by adding a new Part to read:

"Part 8C. Deep Draft Navigation Channel Dredging and Maintenance Fund.

"§ 143‑215.73G. Deep Draft Navigation Channel Dredging and Maintenance Fund.

(a) Fund Established. – The Deep Draft Navigation Channel Dredging and Maintenance Fund is established as a special revenue fund. The Fund consists of General Fund appropriations, gifts or grants, including monies contributed by a non‑State entity for a particular dredging project or group of projects, and any other revenues specifically allocated to the Fund by an act of the General Assembly.

(b) Uses of the Fund. – Revenue credited to the Fund may only be used for costs associated with projects providing safe and efficient navigational access to a State Port, including the design, construction, expansion, modification, or maintenance of deep draft navigation channels, turning basins, berths and related structures, as well as surveys or studies related to any of the foregoing and the costs of disposal of dredged material.

(c) Conditions on Funding. – State funds credited to the Fund from the sources described in subsection (a) of this section must be cost‑shared on a one‑to‑one basis with funds provided by the State Ports Authority, provided that:

(1) Funds contributed to the Fund by a non‑State entity are not considered State funds, and may be used to provide the cost‑share required by this subsection.

(2) The Secretary may waive or modify the cost‑share requirement for any project that supplements Corps funding for a study authorized by the Corps related to navigational access to a State Port, based on availability of alternate funding sources.

(d) Waiver of Cost‑Share. – The Secretary may waive or modify the non‑State cost‑share requirement for dredging projects or federally authorized studies of deep draft access to State Ports that (i) represent an opportunity to supplement or leverage Corps funding that would be lost if a cost‑share was required, or (ii) alleviate shoaling or other navigational hazards that pose a negative impact on safety or commerce within, or channels providing access to, a State Port.

(g) Definitions. – The following definitions apply in this Part:

(1) Corps. – The United States Army Corps of Engineers.

(2) State Port. – Facilities at Wilmington or Morehead City managed or operated by the State Ports Authority."

SECTION 2.(b) Of the funds appropriated to the Department of Commerce Job Catalyst Fund (Budget Code 14600‑1912) for the 2014‑2015 fiscal year, the sum of one million dollars ($1,000,000) shall be transferred to the Deep Draft Navigation Channel Dredging and Maintenance Fund established pursuant to G.S. 143‑215.73G, as enacted by Section 2 of this act, within 10 days of the effective date of this act.

PART III. MEMORANDA OF AGREEMENT

SECTION 3.(a) SPA Memorandum of Agreement. – The State Ports Authority shall negotiate with the United States Army Corps of Engineers (hereafter, "Corps") a memorandum of agreement allowing for nonfederal funding of dredging and related studies or maintenance at the State Ports located at Wilmington and Morehead City. The memorandum required by this section shall be for as long a term as possible.

SECTION 3.(b) DENR Memorandum of Agreement. – The Division of Water Resources of the Department of Environment and Natural Resources shall negotiate with the Corps a memorandum of agreement allowing for nonfederal funding of dredging of Oregon Inlet. The memorandum required by this section shall be for as long a term as possible.

PART IV. ACQUISITION OF FEDERAL LAND FOR PROTECTION OF NAVIGATIONAL SAFETY AND COMMERCE

SECTION 4.(a) Acquisition Agreement. – Notwithstanding Chapter 146 of the General Statutes or any other provision of law, the Department of Administration, on behalf of the State, shall seek to initiate negotiations with the appropriate agency of the federal government for an agreement to acquire the federally owned property necessary for management of deep draft navigation channels providing access to State Port facilities at Morehead City from the federal government in exchange for State‑owned real property.

SECTION 4.(b) Terms. – The Secretary of the Department of Administration shall have the authority to negotiate the terms of the acquisition agreement. The agreement (i) shall provide for the acquisition of interests in real property described in subsection (a) of this section and no other; (ii) shall provide that the conveyances described in the agreement become effective as soon as practicable; and (iii) shall incorporate the relevant terms of this section.

SECTION 4.(c) Execution of Deeds. – Within 30 days of the acquisition becoming effective, the Attorney General shall execute any documents or deeds necessary to effectuate the acquisition under the exact terms set forth in the acquisition agreement. All State agencies and officials shall cooperate to the fullest extent possible in effectuating the acquisition agreement.

SECTION 4.(d) Reporting. – Within 30 days after an agreement is entered into pursuant to this section, the Secretary of the Department of Administration shall report to the Joint Legislative Commission on Governmental Operations on the terms of the agreement.

PART V. REMOVAL OF NAVIGATIONAL OBSTRUCTIONS FOR ECOSYSTEM RESTORATION AND PROTECTION OF NAVIGATIONAL SAFETY

SECTION 5.1.(a) Definitions. – "Reserve Components Rule" means 15A NCAC 07O .0105 (North Carolina Coastal Reserve: Reserve Components) for purposes of this section and its implementation.

SECTION 5.1.(b) Reserve Components Rule. – Until the effective date of the revised permanent rule that the Coastal Resources Commission is required to adopt pursuant to Section 5.1(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement the Reserve Components Rule, as provided in Section 5.1(c) of this act.

SECTION 5.1.(c) Implementation. – Notwithstanding the Reserve Components Rule, the Commission shall adjust the boundary established for Zeke's Island by moving the current western boundary 200 feet seaward, and removing the area that lies between the current boundary and the new boundary from the North Carolina Coastal Reserve.

SECTION 5.1.(d) Additional Rule‑Making Authority. – The Commission shall adopt a rule to replace the Reserve Components Rule. Notwithstanding G.S. 150B‑19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 5.1(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2).

SECTION 5.1.(e) Effective Date. – Subsection (b) of this section expires when permanent rules to replace subsection (b) of this section have become effective, as provided by subsection (c) of this section.

SECTION 5.2.(a) The General Assembly finds that the New Inlet Dam or "The Rocks" is a breakwater established by the United States Army Corps of Engineers in the late 1800s. The New Inlet Dam is composed of two components, a Northern Component that extends from Federal Point to Zeke's Island and a Southern Component that extends southwestward from Zeke's Island and separates the New Inlet from the main channel of the Cape Fear River.

SECTION 5.2.(b) The General Assembly finds that the Southern Component of the New Inlet Dam impedes the natural flow of water between the Cape Fear River and the Atlantic Ocean that occurred prior to emplacement of the dam.

SECTION 5.2.(c) The General Assembly finds that it is necessary to remove the Southern Component of the New Inlet Dam in order to reestablish the natural ecosystem of the mouth of the Cape Fear River and its environs.

SECTION 5.2.(d) To this end, the Department of Environment and Natural Resources shall do all of the following:

(1) Notify the United States Army Corps of Engineers of the State's intent to remove the Southern Component of the New Inlet Dam.

(2) Issue a Request for Proposals for a firm capable of conducting all aspects of removal of the Southern Component of New Inlet, including securing all necessary State and federal permits and developing and implementing a removal plan.

(3) Execute a contract with the firm chosen to implement subdivision (2) of this section and exercise oversight of the fulfillment of the contract.

SECTION 5.2.(e) Notwithstanding any other provision of law, the Department of Environment and Natural Resources may use funds from the Deep Draft Navigation Channel Dredging and Maintenance Fund, established pursuant to G.S. 143‑215.73G, as enacted by Section 2 of this act, to implement this section.

PART VI. SEVERABILITY CLAUSE AND EFFECTIVE DATE

SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

SECTION 7. This act is effective when it becomes law.