SESSION LAW 2010-143




AN ACT to direct the department of environment and natural resources to develop basinwide hydrologic models, AS RECOMMENDED BY THE eNVIRONMENTAL REVIEW COMMISSION.


The General Assembly of North Carolina enacts:


SECTION 1.  G.S. 143-350 reads as rewritten:

" 143-350.  Definitions.

As used in this Article:

(3)        "Essential water use" means the use of water necessary for firefighting, health, and safety; water needed to sustain human and animal life; and water necessary to satisfy federal, State, and local laws for the protection of public health, safety, welfare, the environment, and natural resources; and a minimum amount of water necessary to maintain support and sustain the economy of the State, region, or area.


SECTION 2.  G.S. 143-355 is amended by adding a new subsection to read:

"(o)      Basinwide Hydrologic Models. - The Department shall develop a basinwide hydrologic model for each of the 17 major river basins in the State as provided in this subsection.

(1)        Definitions. - As used in this subsection:

a.         "Ecological flow" means the stream flow necessary to protect ecological integrity.

b.         "Ecological integrity" means the ability of an aquatic system to support and maintain a balanced, integrated, adaptive community of organisms having a species composition, diversity, and functional organization comparable to prevailing ecological conditions and, when subject to disruption, to recover and continue to provide the natural goods and services that normally accrue from the system.

c.         "Groundwater resource" means any water flowing or lying under the surface of the earth or contained within an aquifer.

d.         "Prevailing ecological conditions" means the ecological conditions determined by reference to the applicable period of record of the United States Geological Survey stream gauge data, including data reflecting the ecological conditions that exist after the construction and operation of existing flow modification devices, such as dams, but excluding data collected when stream flow is temporarily affected by in-stream construction activity.

e.         "Surface water resource" means any lake, pond, river, stream, creek, run, spring, or other water flowing or lying on the surface of the earth.

(2)        Schedule. - The Department shall develop a schedule for basinwide hydrologic model development. In developing the schedule, the Department shall give priority to developing hydrologic models for river basins or portions of river basins that are experiencing or are likely to experience water supply shortages, where the ecological integrity is threatened or likely to become threatened, or for which an existing hydrologic model has not been developed by the Department or other persons or entities.

(3)        Model. - Each basinwide hydrologic model shall:

a.         Include surface water resources within the river basin, groundwater resources within the river basin to the extent known by the Department, transfers into and out of the river basin that are required to be registered under G.S. 143-215.22H, other withdrawals, ecological flow, instream flow requirements, projections of future withdrawals, an estimate of return flows within the river basin, inflow data, local water supply plans, and other scientific and technical information the Department deems relevant.

b.         Be designed to simulate the flows of each surface water resource within the basin that is identified as a source of water for a withdrawal registered under G.S. 143-215.22H in response to different variables, conditions, and scenarios. The model shall specifically be designed to predict the places, times, frequencies, and intervals at which any of the following may occur:

1.         Yield may be inadequate to meet all needs.

2.         Yield may be inadequate to meet all essential water uses.

3.         Ecological flow may be adversely affected.

c.         Be based solely on data that is of public record and open to public review and comment.

(4)        Ecological flow. - The Department shall characterize the ecology in the different river basins and identify the flow necessary to maintain ecological integrity. The Department shall create a Science Advisory Board to assist the Department in characterizing the natural ecology and identifying the flow requirements. The Science Advisory Board shall include representatives from the Divisions of Water Resources and Water Quality of the Department, the North Carolina Wildlife Resources Commission, the North Carolina Marine Fisheries Commission, and the Natural Heritage Program. The Department shall also invite participation by the United States Fish and Wildlife Service; the National Marine Fisheries Service; representatives of organizations representing agriculture, forestry, manufacturing, electric public utilities, and local governments, with expertise in aquatic ecology and habitat; and other individuals or organizations with expertise in aquatic ecology and habitat. The Department shall ask the Science Advisory Board to review any report or study submitted to the Department for consideration that is relevant to characterizing the ecology of the different river basins and identifying flow requirements for maintenance of ecological integrity. The Department shall consider such other information, including site specific analyses, that either the Board or the Department considers relevant to determining ecological flow requirements.

(5)        Interstate cooperation. - To the extent practicable, the Department shall work with neighboring states to develop basinwide hydrologic models for each river basin shared by North Carolina and another state.

(6)        Approval and modification of hydrologic models. -

a.         Upon completion of a hydrologic model, the Department shall:

1.         Submit the model to the Commission for approval.

2.         Publish in the North Carolina Register notice of its recommendation that the Commission approve the model and of a 60-day period for providing comment on the model.

3.         Provide electronic notice to persons who have requested electronic notice of the notice published in the North Carolina Register.

b.         Upon receipt of a hydrologic model, the Commission shall:

1.         Receive comment on the model for the 60-day period noticed in the North Carolina Register.

2.         Act on the model following the 60-day comment period.

c.         The Department shall submit any significant modification to an approved hydrologic model to the Commission for review and approval under the process used for initial approval of the model.

d.         A hydrologic model is not a rule, and Article 2A of Chapter 150B of the General Statutes does not apply to the development of a hydrologic model.

(7)        Existing hydrologic models. - The Department shall not develop a hydrologic model for a river basin for which a hydrologic model has already been developed by a person or entity other than the Department, if the Department determines that the hydrologic model meets the requirements of this subsection. The Department may adopt a hydrologic model that has been developed by another person or entity that meets the requirements of this subsection in lieu of developing a hydrologic model as required by this subsection. The Department may make any modifications or additions to a hydrologic model developed by another person or entity that are necessary to meet the requirements of this subsection.

(8)        Construction of subsection. - Nothing in this subsection shall be construed to vary any existing, or impose any additional regulatory requirements, related to water quality or water resources.

(9)        Report. - The Department shall report to the Environmental Review Commission on the development of basinwide hydrologic models no later than November 1, of each year."

SECTION 3.  The first report required by G.S. 143-355(o), as enacted by Section 2 of this act, is due no later than November 1, 2011.

SECTION 4.  This act is effective when it becomes law.

In the General Assembly read three times and ratified this the 8th day of July, 2010.



                                                                    s/  Walter H. Dalton

                                                                         President of the Senate



                                                                    s/  Joe Hackney

                                                                         Speaker of the House of Representatives



                                                                    s/  Beverly E. Perdue




Approved 1:52 p.m. this 22nd day of July, 2010