Title: Laws of North Carolina Relating to Water and Air Resources - Issued by NC Dept. of Water and Air Resources, Reprinted From General Statutes of NC and 1967 Cumulative Supplement
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Title: Laws of North Carolina Relating to Water and Air Resources - Issued by NC Dept. of Water and Air Resources, Reprinted From General Statutes of NC and 1967 Cumulative Supplement
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Language: English
Publisher: The Michie Company of Charlottesville, Virginia
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Abstract: Jake Varn Collection - Laws of North Carolina Relating to Water and Air Resources - Issued by NC Dept. of Water and Air Resources, Reprinted From General Statutes of NC and 1967 Cumulative Supplement (JDV Box 39)
General Note: Box 29, Folder 23 ( Water Statutes - Other States - 1900s ), Item 2
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Full Text


LAWS OF NORTH CAROLINA

RELATING TO

WATER AND AIR RESOURCES








Issued by
NORTH CAROLINA DEPARTMENT OF WATER AND AIR RESOURCES


Reprinted from General Statutes of North Carolina and
1967 Cumulative Supplement









THE MICHIE COMPANY
CHARLOTTESVILLE, VIRGINIA
1968


































COPYRIGHT 1944, 1950, 1952, 1955, 1958, 1959, 1960, 1961, 1962,
1963, 1964, 1965, 1967
BY
THE MICHIE COMPANY







Table of Contents

PAGE
Chapter 77. Rivers and Creeks.
Article 1. Commissioners for Opening and Clearing Streams, 77-1 to
77-11 ............................... .................. 5
Article 2. Obstructions in Streams, 77-12 to 77-14 .................. 8
Chapter 87. Contractors.
Article 6. Water Well Contractors, 87-65 to 87-82 .................. 10
Article 7. North Carolina Well Construction Act, 87-83 to 87 S.) ...... 14
Chapter 105. Taxation.
Article 3. Schedule C. Franchise Tax, 105-122 ...................... 20
Article 4. Schedule D. Income Tax, 105-147 (13) ................... 27
Article 15. Classification, Valuation and Taxation of Properly, 105-
294 ................... .............. .... ... ..... .... .... 28
Article 16. Exemptions and Deductions, 105-296 (11), 105-297 (16) ... 29
Chapter 130. Public Health.
Article 13. Water and Sewer Sanitation, 130-157 to 130-166 .......... 31
Chapter 143. State Departments, Institutions, and Commissions.
Article 21. Department of Water and Air Resources, 143-211 to 143-
215.37 ......................... ...... ... ............ 36
Article 33A. Rules of Evidence in Administrative Proceedings before State
Agencies, 143-317, 143-318 ................................... 71
Article 38. Department of Water Resources, 143-348 to 143-359 ....... 71
Article 43. North Carolina Seashore Commission, 143-384 to 143-391 ... 78
Chapter 146. State Lands.
Article 2. Dispositions, 146-6.1 ................................. 80


Index ........................................... ................. 83












Laws of North Carolina Relating to

Water and Air Resources


Chapter 77.
Rivers and Creeks.
Article 1. Sec.
Commissioners for Opening and Clearing 77-8. Repairing breaks.
Streams. 77-9. Entry upon lands of another to
Sec. make repairs.
77-1. County commissioners to appoint 77-10. Draws in bridges.
commissioners. 77-11. Public landings.
77-2. Flats and appurtenances procured. Article 2.
77-3. Laid off in districts; passage for
fish. Obstructions in Streams.
77-4. Gates and slopes on milldams. 77-12. Obstructing passage of boats.
77-5. Owner to maintain gate and slope. 77-13. Obstructing streams a misde-
77-6. Gates and slopes discontinued. meanor.
77-7. Failure of owner of dam to keep 77-14. Obstructions in streams and drain-
gates, etc. age ditches.
ARTICLE 1.
Commissioners for Opening and Clearing Streams.
77-1. County commissioners to appoint commissioners.-Where
any inland river or stream runs through the county, or is a line of their county,
the boards of commissioners of the several counties may appoint commissioners
to view such river or stream, and make out a scale of the expense of labor with
which the opening and clearing thereof will be attended; and if the same is deemed
within the ability of the county, and to be expedient, they may appoint and autho-
rize the commissioners to proceed in the most expeditious manner in opening and
clearing the same. (Code, s. 3706; 1887, c. 370; Rev., s. 5297; C. S., s. 7363.)
77-2. Flats and appurtenances procured.-The board of county com-
missioners appointing the commissioners may direct them to purchase or hire a
flat with a windlass and the appurtenances necessary to remove loose rock and
other things, which may by such means be more easily removed, and allow the
same to be paid for out of the county funds. (1785, c. 242, s. 2; R. C., c. 100,
s. 3; Code, s. 3708; Rev., s. 5299; C. S., s. 7365.)
77-3. Laid off in districts; passage for fish.-The board of county
commissioners may appoint commissioners to examine and lay off the rivers and
creeks in their county; and where the stream is a boundary between two coun-
ties, may lay off the same on their side; in doing so they shall allow three fourths
for the owners of the streams for erecting slopes, dams and stands; and one-fourth
part, including the deepest part, they shall leave open for the passage of fish, mark-
ing and designating the same in the best manner they can; and if mills are built
across such stream, and slopes may be necessary, the commissioners shall lay off
such slopes, and determine the length of time they shall be kept open; and such
commissioners shall return to their respective boards of county commissioners a
plan of such slopes, dams, and other parts of streams viewed and surveyed. (1787.
c. 272, s. 1; R. C., c. 100, s. 5; Code, s. 3710; Rev., s. 5301; C. S., s. 7367.)
Cross Reference.-See note to 77-4. 692 (1892); Hutton v. Webb, 124 N. C.
Cited in Gwaltney v. Scottish Carolina 749, 33 S. E. 169 (1899).
Timber, etc.. Co., 111 N. C. 547, 16 S. E.





77-4 WATER AND AIR RESOURCES 77-9

77-4. Gates and slopes on milldams.-The commissioners appointed
by the board of county commissioners to examine and lay off the rivers and creeks
within the county, or where the stream is a boundary between counties, shall have
power to lay off gates, with slopes attached thereto, upon any milldam built across
such stream, of such dimensions and construction as shall be sufficient for the
convenient passage of floating logs and other timber, in cases where it may be
deemed necessary by the said board of county commissioners; and they shall re-
turn to the board of county commissioners appointing them a plan of such gates,
slopes, and dams in writing. (1858-9, c. 26, s. 1; Code, s. 3712; Rev., s. 5302;
C. S., s. 7368.)
Only Applicable to Floatable Streams. peached by allegations of fraud or other
-- It would seem that the statute was illegal conduct, is a bar to the remedy by
passed entirely with reference to floatable injunction. Therefore, a defendant will not
streams because without condemnation the be restrained from erecting a dam across a
commissioners would have no right to en- stream, when he is proceeding under the
ter upon and clean out beds of streams permit and direction of the commissioners.
which were not natural highways. Com- McLaughlin v. Hope Mfg. Co., 103 N. C.
missioners v. Catawba Lumber Co., 116 N. 100, 9 S. E. 307 (1889).
C. 731, 21 S. E. 941 (1895). Cited in Gwaltney v. Scottish Carolina
Dams Built under Permit. Authority Timber, etc., Co., 111 N. C. 547, 16 S. E.
over streams, conferred upon county com- 692 (1892).
missioners while it stands and is unim-
77-5. Owner to maintain gate and slope.-Upon the confirmation of
the report made by the commissioners, and notice thereof given to the owner or
keeper of said mill, it shall be his duty forthwith to construct, and thereafter to
keep and maintain, at his expense, such gate and slope, for the use of persons
floating logs and other timber as aforesaid, so long as said dam shall be kept up,
or until otherwise ordered by the board of county commissioners. (1858-9, c. 26,
s. 2; Code, s. 3713; Rev., s. 5303; C. S., s. 7369.)
77-6. Gates and slopes discontinued.-The commissioners appointed
as aforesaid, at any time that they may deem such gate and slope no longer nec-
essary, may report the fact to their respective boards of county commissioners,
and said boards of county commissioners may order the same to be discontinued.
(1858-9, c. 26, s. 3; Code, s. 3714; Rev., s. 5304; C. S., s. 7370.)
77-7. Failure of owner of dam to keep gates, etc.-If any owner or
keeper of a mill, whose dam is across any stream, shall fail to build a gate and
slope therein, or thereafter to keep and maintain the same as required by com-
missioners to lay off rivers and creeks, he shall be guilty of a misdemeanor. (1858-
9, c. 26, s. 4; Code, s. 3715; Rev., s. 3383; C. S., s. 7371.)
Cited in Letterman v. Mica Co., 249 N.
C. 769, 107 S. E. (2d) 753 (1959).
77-8. Repairing breaks. Wherever any stream of water which is
used to propel machinery shall be by freshet or otherwise diverted from its usual
channel so as to impair its power as used by any person, such person shall have
power to repair the banks of such stream at the place where the break occurs,
so as to cause the stream to return to its former channel. (1879, c. 53, s. 1; Code,
s. 3716; Rev., s. 5305; C. S., s. 7372.)
77-9. Entry upon lands of another to make repairs.-In case the
break occurs on the lands of a different person from the one utilizing the stream,
the person utilizing the stream shall have power to enter upon the lands of such
other person to repair the same, and in case such person objects, the clerk of the
superior court of the county in which the break occurs shall, upon application of
the party utilizing the stream, appoint three disinterested freeholders, neither of
whom shall be related to either party, who after being duly sworn shall lay
6








off a road, if necessary, by which said person may pass over the lands of such other
person to the break and repair said break from time to time as often as may be
necessary, so as to cause the stream to return to its original channel, and assess
any damage which may thereby be occasioned: Provided, the party upon whose
land the work is proposed to be done shall have five days' notice in writing served
on him or left at his place of residence: Provided further, that it shall be the duty
of said commissioners to assess the damage of anyone on whose land the road shall
be laid off to be paid by the applicant for said road: Provided, also, that either
party shall have the right of appeal to the superior court. (1879, c. 53, s. 2; Code,
s. 3717; Rev., s. 5306; C. S., s.7373.)
77-10. Draws in bridges.-Whenever the navigation of any river or
creek which, in the strict construction of law, might not be considered a navigable
stream, shall be obstructed by any bridge across said stream, except those under
the supervision and control of the State Highway Commission, it shall be lawful
for any person owning any boat plying on said stream to make a draw in such
bridge sufficient for the passage of such boat; and the party owning such boat
shall construct and maintain such draw at his own expense, and shall use the
same in such manner as to delay travel as little as possible. (1879, c. 279, ss. 1,
2; Code, s. 3719; Rev., s. 5307; C. S., s. 7374; 1965, c. 493.)
Editor's Note. The 1965 amendment Cited in Staton v. Wimberly, 122 N. C.
inserted "except those under the supervi- 107, 29 S. E. 63 (1898).
sion and control of the State Highway
Commission" near the middle of the sec-
tion.
77-11. Public landings.-The board of county commissioners may estab-
lish public landings on any navigable stream or watercourse in the county upon
petition in writing. Unless it shall appear to the board that the person owning
the lands sought to be used for a public landing shall have had twenty days' notice
of the intention to file such petition, the same shall be filed in the office of the
clerk of the board until the succeeding meeting of the board, and notice thereof
shall be posted during the same period at the courthouse door. At said meeting
of the board, the allegations of the petition shall be heard, and if sufficient reason
be shown, the board shall order the establishment of the public landing.
The board is authorized to enter upon any land and locate a public landing after
service of notice on the landowner that a landing is to be established under the
authority of this section. If the board and landowner cannot agree on the dam-
ages, if any, the board shall, on the expiration of sixty days from the completion
of the landing, cause to be summoned three disinterested freeholders of the county,
who shall go upon the land and assess the damages and benefits according to the
general law. All damages assessed shall be a county charge. In assessing dam-
ages, the jury shall take into consideration any special benefits accruing to the
landowner, and if such benefits exceed the damages, the amount of such excess of
benefits shall be assessed against the landowner and constitute a lien on the land
adjoining the landing, and shall be collected in the same manner as county taxes.
The board shall order how the costs shall be paid.
No suit shall be instituted by a landowner for damages for the location of the
landing earlier than sixty days, not later than six months, after the completion of
the landing. Either party may appeal to the superior court for the assessment of
damages and benefits, where the matter shall be heard de novo by the court and
jury. No cost shall be awarded against the county upon appeals when the re-
covery awarded on appeal is not more favorable to the appellant than the award of
the referees. All places heretofore established as public landings shall remain such.
(1784, c. 206, s. 4; 1789, c. 303; 1790, c. 331, s. 3; 1793, c. 386; 1813, c. 862, s.
1; 1822, c. 1139, s. 2; R. C., c. 60, s. 1; c. 101, ss. 2, 4; 1869, c. 20, s. 8, subsec.
7


77-11


77-10


RIVERS AND CREEKS






WATER AND AIR RESOURCES


29; 1872-3, c. 189, s. 3; 1879, c. 82, s. 9; Code, ss. 2038, 2040, 2982; Rev., ss.
2684, 2685, 5308; 1917, c. 284, s. 33; 1919, c. 68; C. S., ss. 3667, 3762, 3763,
7375.)
ARTICLE 2.
Obstructions in Streams.
77-12. Obstructing passage of boats.-If any person shall obstruct the
free passage of boats along any river or creek, by felling trees, or by any other
means whatever, he shall be guilty of a misdemeanor. (1796, c. 460. s. 2; R. C.,
c. 100, s. 6; Code, s. 3711; Rev., s. 3561; C. S., s. 7376.)
Cross Reference.-See note to 77-13.
Cited in Hutton v. Webb, 124 N. C. 749,
33 S. E. 169 (1899).
77-13. Obstructing streams a misdemeanor.-If any person shall
willfully fell any tree, or willfully put any obstruction, except for the purposes
of utilizing water as a motive power, in any branch, creek, or other natural pas-
sage for water, whereby the natural flow of water through such passage is lessened
or retarded, and whereby the navigation of such stream by any raft or flat may be
impeded, delayed, or prevented, the person so offending shall be guilty of a mis-
demeanor, and fined not to exceed fifty dollars, or imprisoned not to exceed thirty
days. Nothing in this section shall prevent the erection of fish dams or hedges
which do not extend across more than two thirds of the width of any stream where
erected, but if extending over more than two thirds of the width of any stream, the
said penalties shall attach. (1872-3, c. 107, ss. 1, 2; Code, s. 1123; Rev., s. 3559;
C. S., s. 7377.)
Compared with Common-Law Offense. state the public have an easement of navi-
-At common law it was an offense to gation in them, which easement the owner
obstruct any navigable stream, but by this of the soil cannot obstruct. State v. Nar-
section, unless the act is willful and not rows Island Club, 100 N. C. 477, 5 S. E.
for the purpose of utilizing the water as a 411 (1888).
motive power the offense is not indictable. Indictment.-The indictment under this
State v. Narrows Island Club, 100 N. C. section must charge that the obstruction
477, 5 S. E. 411 (1888); State v. Baum, 128 was not "for the purpose of utilizing."
N. C. 600, 38 S. E. 900 (1901). Such a charge is not necessary in an in-
"Motive Power" Defined. Water used dictment for obstructing waters, at com-
in "sluicing" is not used as a "motive mon law. State v. Narrows Island Club,
power" within the meaning of this section. 100 N. C. 477, 5 S. E. 411 (1888).
The section has obvious reference to the Railroad Bridges. A railroad bridge
use of the energies of water dammed, as a built over a navigable stream if obstructing
moving force, and not to the operation of passage of vessels is a nuisance, and tear-
the current in motion. State v. Duplin ing a portion of it down so that vessels
Canal Co., 91 N. C. 637 (1884). may pass is not indictable. State v. Par-
"Or" Construed to Read "And". The rott, 71 N. C. 311 (1874).
word "and" between the words "retarded" Action for Damages. In an action
and "whereby" formerly read "or," and wherein actual damages were claimed, with
the court in State v. Pool, 74 N. C. 402 punitive damages, for damming a naviga-
(1876), held that the word "or" should ble stream, made a misdemeanor by this
read "and." section, it was held that to recover punitive
Section Applicable to Navigable Streams. damages it was insufficient to show merely
-If a creek is not navigable an obstruc- that the stream was obstructed to plain-
tion cannot "impede, delay, or prevent" tiff's damage, it being necessary to prove,
navigation, and so there is no violation of in such cases, malice, fraud, wanton or
the statute by cutting trees so as to ob- willful disregard of the plaintiff's rights, or
struct a nonnavigable stream. State v. other circumstances of recklessness or ag-
Pool, 74 N. C. 402 (1876). gravation. Warren v. Coharie Lumber Co.,
Section Applicable Though Stream Is 154 N. C. 34, 69 S. E. 685 (1910).
Private Property. The bed of a lake or Cited in Gwaltney v. Scottish Carolina
watercourse may be private property, but Timber, etc., Co., 111 N. C. 547, 16 S. E.
if the waters are navigable in their natural 692 (1892).


77-12


77-13






RIVERS AND CREEKS


77-14. Obstructions in streams and drainage ditches.-If any per-
son, firm or corporation shall fell any tree or put any slabs, stumpage, sawdust,
shavings, lime, refuse or any other substances in any creek, stream, river or natural
or artificial drainage ravine, ditch or other outlet which serves to remove water
from any land whatsoever whereby the natural and normal drainage of said land
is impeded, delayed or prevented, the person, firm or corporation so offending
shall remove such above-described obstruction or substance within seven calendar
days and, upon failure to so remove, shall be guilty of a misdemeanor and fined
or imprisoned in the discretion of the court: Provided, however, nothing herein
shall prevent the construction of any dam not otherwise prohibited by any valid
local or State statute regulation.
All sheriffs, wildlife protectors, highway patrolmen and township constables, or
other persons knowing of such violations, shall report to the board of county com-
missioners, of the county in which such above-described obstruction of drainage
takes place, the names of any persons, firms or corporations violating the pro-
visions of this section, and it shall be the duty of the chairman of the board of
county commissioners to report to the county court solicitor, if there is one, and,
if not, to the district solicitor, facts and circumstances showing the commission of
any offense as defined herein, and it shall be the duty of the solicitor to prosecute
such violators. The provisions of this section shall not apply to the counties of
Chatham, Forsyth, Franklin, Gaston and Lee. (1953, c. 1242; 1957, c. 524; 1959,
cc. 160, 1125; 1961, c. 507.)
Editor's Note. The 1957 amendment 1959 amendment substituted near the mid-
rewrote and greatly extended the first die of the first sentence "any land whatso-
paragraph and added the second para- ever" for the words "farm or agricultural
graph, lands."
The first 1959 amendment deleted The 1961 amendment deleted Halifax
"Edgecombe" from the list of counties at from the last sentence, thereby making
the end of the section and the second this section applicable to Halifax County.


Chapter 87.

Contractors.


Article 6.
Water Well Contractors.
Sec.
87-65. Short title.
87-66. Definitions.
87-67. Individuals excepted from article.
87-68. License required for contractors.
87-69. Permit required to operate well
drilling rig.
87-70. Board of Water Well Contractor
Examiners; creation; composition;
appointment and terms of mem-
bers; vacancies.
87-71. Compensation and expenses of
Board members; employment and
compensation of personnel; ex-
penses of administration not '.o
exceed income; no liability of
State.
87-72. Organization and meetings of
Board; quorum; rules and regu-
lations; seal; administration of
oaths; membership by public em-
ployees.


Sec.
87-73. Reports by Board.
87-74. Issuance of licenses and rig permits;
qualifications of applicants; exami-
nations; failure to pass examina-
tion.
87-75. Licensing of contractor working on
January 1, 1962.
87-76. Expiration of licenses and permits;
renewal without examination.
87-77. Fees.
87-78. Display of license and permit; per-
mit to be weatherproof.
87-79. Grounds for refusal, suspension or
revocation of license.
87-80. Procedure when Board refuses to
examine applicant or revokes or
suspends certificate.
87-81. Violation a misdemeanor; injunc-
tion to prevent violation.
87-82. Counties to which article not ap-
plicable; residents can practice in
other counties.


77-14


77-14






WATER AND AIR RESOURCES


Article 7.
North Carolina Well Construction Act.
Sec.
87-83. Short title.
87-84. Findings and policy.
87-85. Definitions.
87-86. Scope.
87-87. Authority to adopt rules, regula-
tions, and procedures.
87-88. General standards and require-
ments.


Sec.
87-89. Existing installations.
87-90. Rights of investigation, entry, ac-
cess and inspection.
87-91. Notice.
87-92. Hearings.
87-93. Judicial review.
87-94. Penalties.
87-95. Injunctive relief.
87-96. Conflict with other laws.

ICLE 6.


Water Well Contractors.
87-65. Short title.-This article shall be known and may be cited as the
"Water Well Contractor's License Act." (1961, c. 997, s. 1.)
Editor's Note. The Act adding this
article is effective as of Jan. 1, 1962.
87-66. Definitions.-As used in this article, unless the context otherwise
requires:
(1) "Board" means the Board of Water Well Contractor Examiners created
by this article.
(2) "Drill" and "drilling" mean all acts necessary to the construction of a
water well with power equipment including the sealing of unused water
well holes.
(3) "Ground water" means water of underground streams, channels, artesian
basins, reservoirs, lakes and other water under the surface of the ground
whether percolating or otherwise.
(4) "License" means a water well contractor's license required by this article.
(5) "Person" includes any natural person, partnership, association, trust and
public or private corporation.
(6) "Rig permit" and "permit" mean a permit to operate a water well drill-
ing rig required by this article.
(7) "Water well" and "well" mean any excavation that is machine drilled,
cored, bored, washed, driven, jetted when the intended use of such
excavation is for the location, diversion, artificial recharge or acquisition
of ground water, but such term does not include an excavation made for
the purpose of obtaining or prospecting for oil, natural gas, minerals
or products of mining or quarrying or for inserting media to repressure
oil or natural gas bearing formation or for storing petroleum, natural
gas or other products.
(8) "Water well contractor" and "contractor" mean any person who con-
tracts to machine drill, alter or repair any water well.
(9) "Water well drilling rig" means the power machinery used in drilling a
water well. (1961, c. 997, s. 2.)
87-67. Individuals excepted from article.-This article shall not apply:
(1) To an individual who drills a water well on land which is owned or
leased by him and is used by him for farming purposes or as his place
of abode; or
(2) To an individual who performs labor or services for a licensed water well
contractor in connection with the drilling of a water well at the di-
rection and under the personal supervision of a licensed water well
contractor.


87-67


87-65






WATER WELL CONTRACTORS


(3) To an individual who hand digs, bores, washes, drives, jets, cores or re-
pairs or cleans wells without the use of power equipment. (1961, c.
997, s. 3.)
87-68. License required for contractors. Subject to the provisions
of 87-67, after January 1, 1962, no contractor shall drill a water well or engage
in the occupation of a water well contractor unless he holds a valid license as a
water well contractor issued by the Board under this article. Nothing contained
herein shall prevent or preclude any person not licensed under this article or his
employee from installing or servicing water well pumps, water pumps, water well
pumping units, pumping units, pressure tanks and connections thereto after any
wat well has been drilled. (1961, c. 997, s. 4.)
87-69. Permit required to operate well drilling rig.-After January
1, 1962, no water well contractor shall operate a water well drilling rig or permit
a well drilling rig owned by him to be operated by any employee unless he holds a
valid permit to operate such drilling rig issued by the Board under this article.
A separate rate permit shall be obtained for each water well drilling rig operated
by a licensed water well contractor during the permit year. (1961, c. 997, s. 5.)
87-70. Board of Water Well Contractor Examiners; creation;
composition; appointment and terms of members; vacancies.-There is
hereby created a State Board of Water Well Contractor Examiners consisting
of seven persons to be appointed by the Governor. Four of the members of said
Board are to be water well contractors; one is to be an employee of the State De-
partment of Water Resources; one is to be an employee of the State Board of
Health; and, one is to be a person to represent the interests of the public at large,
and such appointee shall not be a water well contractor or an employee thereof or
a member or employee of any State Department. Prior to January 1, 1962, the
Governor shall appoint two water well contractors for a term of one year; an em-
ployee of the State Board of Health and a person representing the public at large
for a term of two years; and, two water well contractors and an employee of the
State Department of Water Resources for a term of three years. Thereafter, as the
term of an appointed member expires, or as a vacancy in the appointed membership
occurs for any reason, the Governor shall appoint a successor for a term of three
years, or for the remainder of the unexpired term, as the case may be.
The water well contractors appointed by the Governor must be licensed under
the provisions of this article; provided, however, that this requirement shall not
apply to members of the original board during their initial terms of office. (1961,
c. 997, s. 6.)
87-71. Compensation and expenses of Board members; employ-
ment and compensation of personnel; expenses of administration not
to exceed income; no liability of State.-Members of the Board shall re-
ceive ten dollars ($10.00) per day for each day actually spent in the performance
of duties required by this article, plus actual travel expense. The Board may em-
ploy necessary personnel for the performance of its functions, and fix the compensa-
tion therefore, within the limits of funds available to the Board. The total expense
of the administration of this article shall not exceed the total income therefrom;
and none of the expenses of said Board or the compensation or expenses of any
officer thereof or any employee shall ever be paid or payable out of the treasury
of the State of North Carolina; and neither the Board nor any officer or employee
thereof shall have any power or authority to make or incur any expense, debt, or
other financial obligation binding upon the State of North Carolina. (1961, c.
997, s. 7.)
87-72. Organization and meetings of Board; quorum; rules and
regulations; seal; administration of oaths; membership by public em-
ployees.-The Board shall annually elect a chairman from among its member-


m


87-68


87-72






WATER AND AIR RESOURCES


ship. The Board shall meet annually in the city of Raleigh, at a time set by the
Board, and it may hold additional meetings and conduct business at any place in
the State. Four members of the Board shall constitute a quorum to do business.
The Board may designate any member to conduct any proceeding, hearing, or
investigation necessary to its purposes, but any final action requires a quorum of
the Board. The Board is authorized to adopt such rules and regulations as may
be necessary for the efficient operation of the Board. The Board shall have air
official seal and each member shall be empowered to administer oaths in the tak-
ing of testimony upon any matters pertaining to the functions of the Board. Mem-
bership on the Board of any public employee shall not constitute dual office holding
but merely additional duties of such employee. (1961, c. 997, s. 8.)
87-73. Reports by Board.-The Board shall file such reports as are re-
quired by chapter 93B of the General Statutes of North Carolina. (1961, c. 997,
s.9.)
S87-74. Issuance of licenses and rig permits; qualifications of ap-
p icants; examinations; failure to pass examination.-(a) The Board
shall issue a certificate as a licensed water well contractor to any applicant who
pays a fee set by the Board but not to exceed the amount specified in this article,
who passes an examination to the satisfaction of the Board, and who submits evi-
dence verified by oath and satisfactory to the Board that he:
(1) Is at least twenty-one years of age;
(2) Is of good moral character;
(3) Is a citizen of the United States, or has legally declared his intentions of
becoming one; and,
(b) The examination required by subsection (a) of this section shall be in such
manner or form as the Board in the exercise of its discretion may determine, and
such examination may be either oral or written. The examination for unlicensed
applicants shall be held annually, or more frequently as the Board may by rule
prescribe, at a time and place to be determined by the Board. Persons failing to
pass the examination shall be refunded one-half of the examination fee. Failure to
pass an examination shall not prohibit such person from being examined at a sub-
sequent time.
(c) The Board is to issue rig permits where the applicant therefore has a valid
license issued pursuant to this article, has made a proper application, and has paid
th required fee. (1961, c. 997, s. 10.)
87-75. Licensing of contractor working on January 1, 1962.-
Any person who, within six months after January 1, 1962, submits to the Board
under oath evidence satisfactory to the Board that he was performing functions
as a water well contractor (as defined in 87-66) on January 1, 1962 shall be
licensed as a water well contractor upon the payment of the fee required by this
arti e. (1961, c. 997, s. 11.)
87-76. Expiration of licenses and permits; renewal without ex-
amination.-All licenses and permits issued under this article shall expire on the
last day of January next following the date of issuance. A license may be renewed
for an ensuing license year without examination by making application therefore
and paying the prescribed fee at least thirty (30) days prior to the expiration date
of the current license, and such application shall extend the period of validity of
the current license until a new license is received or the Board refuses to issue a
new license under the provisions of this article. (1961, c. 997, s. 12.)
Local Modification.-Alamance: 1963, c. 1963, c. 741, s. 2; Halifax: 1963, c. 906,
545, s. 3; Catawba: 1963, c. 557, s. 2; s. 2; Orange: 1963, c. 545, s. 3.
Cumberland: 1963, c. 682, s. 2; Davidson:


87-73


87-76




WATER WELL CONTRACTORS


87-77. Fees.-A fee to be determined by the Board, but not to exceed the
amount specified herein, shall be paid to the Board at the time an application is
made:
For original license .......................................... $50.00
For renewal of license ....................................... 25.00
For each rig permit ..................... ................... 15.00
There shall be no reduction in such fees because a license or rig permit when
issued may be valid for less time than a full license or permit year. (1961, c. 997,

Z 87-78. Display of license and permit; permit to be weatherproof.
-The licensee shall conspicuously display his license at his principal place of busi-
ness. Each rig permit shall be made of weatherproof material and shall be firmly
attachd to the drilling rig for which it was issued. (1961, c. 997, s. 14.)
S87-79. Grounds for refusal, suspension or revocation of license.-
The Board may refuse to issue or renew or may suspend or revoke a license on
any one or more of the following grounds:
(1) Material misstatement in the application for license;
(2) Failure to have or retain the qualifications required by 87-74;
(3) Willful disregard or violation of this article or of any rule or regulation
promulgated by the Board pursuant thereto; or of any law of the State
of North Carolina relating to water wells;
(4) Willfully aiding or abetting another in the violation of this article or any
rule or regulation promulgated by the Board pursuant thereto;
(5) Incompetency in the performance of the work of a water well contractor;
(6) Allowing the use of his license by an unlicensed person;
(7) Conviction of any crime an essential element of which is misstatement,
fraud or dishonesty or conviction of any felony; and,
(8) Making substantial misrepresentations or false promises of a character
likely to influence, persuade or induce in connection with the occupa-
tion of a water well contractor. (1961, c. 997, s. 15.)
87-80. Procedure when Board refuses to examine applicant or re-
vokes or suspends certificate.-The procedure to be followed by the Board
when it contemplates refusing to allow an applicant to take an examination, or to
revoke or suspend a certificate issued under the provisions of this article, shall be
in accordance with the provisions of chapter 150 of the General Statutes of North
Carolina. (1961, c. 997, s. 16.)
87-81. Violation a misdemeanor; injunction to prevent violation.
-Any person violating any of the provisions of this article shall be guilty of a
misdemeanor and punishable in the discretion of the court. The Board is authorized
to apply to any judge of the superior court for an injunction in order to prevent
any violation or threatened violation of the provisions of this article. (1961, c.
997, s. 17.)
87-82. Counties to which article not applicable; residents can
practice in other counties.-This article shall not apply to the following coun-
ties: Alexander, Anson, Ashe, Avery, Beaufort, Bladen, Buncombe, Burke, Ca-
barrus, Caldwell, Camden, Carteret, Caswell, Chatham, Cherokee, Chowan, Clay,
Cleveland, Columbus, Craven, Dare, Davie, Duplin, Edgecombe, Forsyth, Gas-
ton, Gates, Graham, Granville, Greene, Guilford, Harnett, Haywood, Henderson.
Hoke, Hyde, Iredell, Johnston, Jones, Lincoln, McDowell, Macon, Madison, Mar-
tin, New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Person.
Pitt, Polk, Randolph, Robeson, Rockingham, Rowan. Rutherford, Sampson, Sco:-
land, Stanly, Stokes, Swain, Tyrrell, Washington, Watauga, Wayne, Wilson and
Yancey.


87-77


87-82




w_


WATER AND AIR RESOURCES


87-85


The exclusion of the foregoing counties in the operation of this article applies
to the operation of residents of the foregoing counties in every county of this State
to the end that they can practice their profession notwithstanding a local resident
may be required to have a license. (1961, c. 997, ss. 18Y2, 18Y4; c. 1221; 1963,
cc. 179, 250, 272, 461; c. 545, ss. 1, 2; c. 557, s. 1; c. 597; c. 682, s. 1; c. 741,
s. 1; c. 879; c. 906, s. 1; 1965, cc. 128, 375; 1967, c. 578.)


Local Modification. Catawba: 1963, c.
557, s. 1%.
Editor's Note. Session Laws 1961, c.
1221, added Martin County.
The first 1963 amendment inserted Av-
ery County in the list of counties to which
the section is not applicable. The second
1963 amendment deleted Nash County, the
third 1963 amendment added Buncombe
County, the fourth 1963 amendment de-
leted Wake County, the fifth 1963 amend-
ment deleted Alamance and Orange
counties, the sixth 1963 amendment deleted
Catawba County, the seventh 1963 amend-
ment deleted Jackson County, and the


eighth 1963 amendment deleted Cumber-
land County, the ninth 1963 amendment,
effective Jan. 1, 1964, deleted Davidson
County, the tenth 1963 amendment deleted
the counties of Lee, Stokes and Union
and the eleventh 1963 amendment, effective
Jan. 1, 1964, deleted Halifax County.
The first 1965 amendment inserted
Stokes County, and the second 1965 amend-
ment inserted Guilford County in the list
of counties to which the article is not ap-
plicable.
The 1967 amendment deleted Franklin
from the list of counties to which this
article is not applicable.


ARTICLE 7.

North Carolina Well Construction Act.

87-83. Short title.-This article shall be known and may be cited as the
North Carolina Well Construction Act. (1967, c. 1157, s. 1.)

87-84. Findings and policy.-The General Assembly of North Carolina
finds that improperly constructed, operated, maintained, or abandoned wells can
adversely affect the public health and the ground-water resources of the State. Con-
sistent with the duty to safeguard the public welfare, safety, health and to protect
and beneficially develop the ground-water resources of this State, it is declared
to be theolicy of this State to require that the location, construction, repair, and
abandon ment of wells, and the installation of pumps and pumping equipment con-
form o such reasonable requirements as may be necessary to protect the public
wel re, safety, health and ground-water resources. (1967, c. 1157, s. 2.)

87-85. Definitions.-As used in this article, unless the context otherwise
quires:
(1) "Abandoned well" means a well whose use has been discontinued, or
which is in such a state of disrepair that continued use for obtaining
groundwater or other useful purpose is impracticable.
(2) "Aquifer" means a geologic formation, group of such formations, or a
part of such a formation that is water bearing.
(3) "Artesian well" means a well tapping a confined or artesian aquifer.
(4) "Board" means the North Carolina Board of Water Resources or its
successor, unless otherwise indicated.
(5) "Construction of wells" means all acts necessary to construct wells for
any intended purpose or use, including the location and excavation of
the well; placement of casings, screens and fittings; development and
testing.
(6) "Installation of pumps and pumping equipment" means the procedure
employed in the placement and preparation for operation of pumps
and pumping equipment, including all construction involved in making
entrances to the well and establishing seals.


87-83




NORTH CAROLINA WELL CONSTRUCTION ACT


(7) "Municipality" means a city, town, county, district, or other public body
created by or pursuant to State law, or any combination thereof acting
cooperatively or jointly.
(8) "Nonpotable mineralized water" means brackish, saline, or other water
containing minerals of such quantity or type as to render the water
unsafe, harmful or generally unsuitable for human consumption and
general use.
(9) "Person" shall mean any and all persons, including individuals, firms,
partnerships, associations, public or private institutions, municipalities
or political subdivisions, governmental agencies, or private or public
corporations organized or existing under the laws of this State or any
other state or country.
(10) "Polluted water" means water containing organic or other contami-
nants of such type and quantity as to render it unsafe, harmful or un-
suitable for human consumption and general use.
(11) "Pumps" and "pumping equipment" means any equipment or materials
utilized or intended for use in withdrawing or obtaining groundwater
including well seals.
(12) "Repair" means work involved in deepening, reaming, sealing, installing
or changing casing depths, perforating, screening, or cleaning, acidizing
or redevelopment of a well excavation, or any other work which re-
sults in breaking or opening the well seal.
(13) "Water supply well" means any well intended or usable as a source of
water supply, but not to include a well constructed by an individual on
land which is owned or leased by him, appurtenant to a single family
dwelling, and intended for domestic use (including household pur-
poses, farm livestock, or gardens).
(14) "Well" means any excavation that is cored, bored, drilled, jetted, dug
or otherwise constructed for the purpose of locating, testing or with-
drawing groundwater or for evaluating, testing, developing, draining
or recharging any ground-water reservoirs or aquifer, or that may
control, divert, or otherwise cause the movement of water from or into
any aquifer. Provided, however, this shall not include a well constructed
by an individual on land which is owned or leased by him, appurtenant
to a single family dwelling, and intended for domestic use (including
household purposes, farm livestock, or gardens).
(15) "Well driller," "driller" or "water well contractor" means any person,
firm, or corporation engaged in the business of constructing wells.
(16) "Well seal" means an approved arrangement or device used to cap a
well or to establish and maintain a junction between the casing or curb-
ing of a well and the piping or equipment installed therein, the purpose
or function of which is to prevent pollutants from entering the well at
the upper terminal. (1967, c. 1157, s. 3.)
87-86. Scope.-No person shall construct, repair, or abandon, or cause
to be constructed, repaired, or abandoned, any well, nor shall any person install,
repair, or cause to be installed or repaired, any pump or pumping equipment con-
trary to the provisions of this article and applicable rules and regulations, provided
that this article shall not apply to any distribution of water beyond the point of
discharge from the pump. (1967, c. 1157, s. 4.)
87-87. Authority to adopt rules, regulations, and procedures.-The
Board shall adopt, and may from time to time amend, rules and regulations not
inconsistent with this article governing the location, construction, repair, and
abandonment of wells, and the installation and repair of pumps and pumping
equipment, and shall be responsible for the administration of this article. With
respect thereto it shall:


87-87


87-86






WATER AND AIR RESOURCES


(1) Hold public hearings, upon not less than 30 days prior notice setting
forth the date, place, and time of hearing, and the proposed rules and
regulations to be considered at said public hearing, which notice shall
be published in one or more newspapers having general circulation
throughout the State, in connection with proposed rules and regula-
tions and amendments thereto;
(2) Enforce the provisions of this article, and any rules and regulations not
inconsistent with the provisions of this article adopted pursuant thereto;
(3) Establish procedures and forms for the submission, review, approval, and
rejection of applications, notifications, and reports required under this
article; and
(4) Issue such additional regulations as may be necessary to carry out the
provisions of this article. (1967, c. 1157, s. 5.)
87-88. General standards and requirements.-(a) Prior Permission.
-Prior permission shall be obtained from the Board for the construction of (i) any
water well or of well systems with a designed capacity of one hundred thousand
gallons per day or greater; and (ii) of any well in a geographical area where the
Board finds, after public hearings, such permission to be reasonably necessary to
protect the ground-water resources and the public welfare, safety and health,
taking into consideration other applicable State laws; provided, however, that the
Board shall not reject any application under this subsection for permission to
construct a well except upon the ground that the well would not be in compliance
with a provision of this article or with a rule or regulation of the Board adopted
pursuant to the provisions of 87-87 of this article. Notification of approval or
rejection of an application for permission to construct a well shall be given the
applicant within a period of 15 days after receipt of such application.
(b) Reports.-Any person completing or abandoning any well shall furnish the
Board a certified record of the construction or abandonment of such well within
a period of 30 days after completion of construction or abandonment.
(c) Prevention of Contamination.-Every well shall be constructed and main-
tained in a condition whereby it is not a source or channel of contamination of the
ground-water supply or any aquifer. Contamination as used herein shall mean the
act of introducing into water foreign materials of such a nature, quality, and
quantity as to cause degradation of the quality of the water.
(d) Valves and Casing on Flowing Artesian Wells.-Valves and casing on all
flowing artesian wells shall be maintained in a condition so that the flow of water
can be completely stopped when the well is not being put to a beneficial use. Valves
shall be closed when a beneficial use is not being made.
(e) Access Port.-Every water-supply well and such other wells, as may be
specified by the Board, shall be equipped with a usable access port or air line and
to be a minimum of 0.5 inch inside diameter opening so that the position of the
water level can be determined at any time. Such port shall be installed and main-
tained in such manner as to prevent entrance of water or foreign material.
(f) Mineralized Water.-Whenever a water-bearing stratum or aquifer that
contains nonpotable mineralized water is encountered in well construction, the
stratum shall be adequately cased or cemented off as conditions may require so
that contamination of the overlying or underlying ground-water zones will not
occur.
(g) Polluted Water.-In constructing any well, all water-bearing zones that are
known to contain polluted water shall be adequately cased or cemented off so that
pollution of the overlying and underlying ground-water zones will not occur.
(h) Well Test.-Every water-supply well shall be tested for capacity by a
method and for a period of time acceptable to the Department and depending on
the intended use of the well.
(i) Chlorination of the Well.-Upon completion of the well construction and
pump installation, all water-supply wells installed for the purpose of obtaining
16


87-88


87-88





NORTH CAROLINA WELL CONSTRUCTION ACT


groundwater for domestic consumption shall be sterilized in accordance with
standards for sterilization of drinking water wells established by the U.S. Public
Health Service.
(j) Use of Well for Recharge or Disposal.-No well shall be used for recharge,
injection or disposal purposes without prior permission from the Board of Water
Resources after consultation with and recommendation by the State Board of
Health.
(k) Aandonment of Wells.-
( Temporary Abandonment: When any well is temporarily removed from
S service, the top of the well shall be sealed with a water-tight cap or seal.
V(2) Permanent Abandonment: Any well that is to be permanently abandoned
shall be filled, plugged, or sealed in such a manner as to prevent the
well from being a channel allowing the vertical movement of water and
a source of contamination of the ground-water supply. (1967, c. 1157,
s. 6.)
87-89. Existing installations.-No well or pump installation in existence
and in use on July 6, 1967, shall be required to conform to provisions of subsection
(a) of 87-88, or any rules or regulations adopted pursuant thereto not incon-
sistent with the provisions of this article; provided, however, that any well now
or hereafter abandoned, including any well deemed to have been abandoned, as
defined in the article, shall, within such time as may be specified by the Board,
be brought into compliance with the requirements of this article and any applicable
rules or regulations with respect to abandonment of wells. It is the intention of the
General Assembly that if the provisions of this section are held invalid as a grant
of an exclusive or separate emolument or privilege, within the meaning of article
I, 7 of the North Carolina Constitution, the remainder of this article shall be
given effect without the invalid provision or provisions. (1967, c. 1157, s. 7.)
S87-90. Rights of investigation, entry, access and inspection.-The
Board shall have the right to conduct such investigations as it may reasonably
find necessary to carry on its duties prescribed in this article, and for this purpose
to enter at reasonable times upon any property, public or private, for the purpose
of investigating the condition, installation, or operation of any well or associated
equipment, facility, or property, and to require written statements or the filing of
reports under oath, with respect to pertinent questions relating to the installation
or operation of any well: Provided, that no person shall be required to disclose any
secret formula, processes or methods used in any manufacturing operation or any
confidential information concerning business activities carried on by him or under
his supervision. No person shall refuse entry or access to any authorized repre-
sentative of the Board who requests entry for purposes of inspection, and who
presents appropriate credentials, nor shall any person obstruct, hamper or interfere
with any such representative while in the process of carrying out his official duties,
consistent with the provisions of this article. (1967, c. 1157, s. 8.) ,
87-91. Notice.-(a) Whenever the Board has reasonable grounds to be-
lieve that there has been a violation of this article, or any rule or regulation
adopted pursuant thereto, the Board shall give written notice to the person or
persons alleged to be in violation. Such notice shall identify the provision of this
article, or regulation issued hereunder, alleged to be violated and the facts alleged
to constitute such violation.
(b) Such notice shall be served on the person by sending the same to such
person by registered or certified mail to his last known post-office address or by
personal service by an agent or employee of the Board, and may be accompanied
by an order of the Board requiring described remedial action, which if taken
within the time specified in such order, will effect compliance with the require-
ments of this article and the rules and regulations issued hereunder. Such order
shall become final unless a request for a hearing as hereinafter provided is made


87-89


87-91






87-92 WATER AND AIR RESOURCES 87-92

within 30 days from the date of service of such order. In addition to, or in lieu of
such order, the Board may appoint a time and place for such person to be heard.
Notice by the Board may be given to any person upon whom a summons may be
served in accordance with the provisions of law governing civil actions in the
superior courts of this State. The Board may prescribe the form and content of any
particular notice. (1967, c. 1157, s. 9.)
87-92. Hearings.-The following provisions, together with any additional
provisions not inconsistent herewith which the Board may prescribe, shall be
applicable in connection with hearings pursuant to this article, except where other
provisions are applicable in connection with specific types of hearings.
(1) Any hearing held pursuant to this article whether called at the instance
of the Board or of any person, shall be held upon not less than 30 days'
written notice given by the Board to any person who is a party to the
proceedings with respect to which such hearing is to be held, unless a
shorter notice is agreed upon by all such parties.
(2) All hearings shall be before the Board, or before one or more of its own
members, or before one or more of its own qualified employees, and
the hearings shall be open to the public. Any employee or member of
the Board to whom a delegation of power is made to conduct a hearing
shall report the hearing with its evidence and record to the Board for
decision.
(3) A full and complete record of all proceedings at any hearing shall be
taken by a reporter appointed by the Board or by any other method
approved by the Attorney General. Any party to a proceeding shall be
entitled to a copy of such record upon the payment of the reasonable
cost thereof as determined by the Board.
(4) The Board and its agents shall follow generally the procedures applicable
in civil actions in the superior court insofar as practicable, including,
rules and procedures with regard to the taking and use of depositions,
the making and use of stipulations, and the entering into of agreed
settlements and consent orders.
(5) The Board, or the duly authorized agents of the said Board, may ad-
minister oaths and may issue subpoenas for the attendance of witnesses
and the production of books, papers, and other documents belonging to
the said person.
(6) Subpoenas issued by the Board, in connection with any hearing, shall be
directed to any officer authorized by law to serve process, and the
further procedures and rules of law applicable with respect thereto
shall be prescribed in connection with subpoenas to the same extent
as if issued by a court of record. In case of a refusal to obey a subpoena
issued by the Board, application may be made to the superior court of
the appropriate county for enforcement thereof.
(7) The burden of proof at any hearing shall be upon the person or the
Board as the case may be, at whose instance the hearing is being held.
(8) No decision or order of the Board shall be made in any proceeding unless
the same is supported by competent, material and substantial evidence
upon consideration of the whole record.
(9) Following any hearing, the Board shall afford the parties thereto a rea-
sonable opportunity to submit within such time as prescribed by the
Board proposed findings of fact and conclusions of law and any brief
in connection therewith. The record in the proceeding shall show the
Board's ruling with respect to each such requested finding of fact and
conclusion of law.
(10) All orders and decisions of the Board shall set forth separately the
Board's findings of fact and conclusions of law and shall, wherever
18





NORTH CAROLINA WELL CONSTRUCTION ACT


necessary, cite the appropriate provision of law or other source of
authority on which any action or decision of the Board is based.
(11) As previously recited above, the Board shall have the authority to adopt
a seal which shall be the seal of said Board and which shall be judicially
noticed by the courts of the State. Any document, proceeding, order,
decree, special order, rule, regulation, rule of procedure or any other
official act or records of the Board or its minutes may be certified by
the director or assistant director of the department under his hand and
the seal of the Board and when so certified shall be received in evidence
in all actions or proceedings in the courts of the State without further
proof of the identity of the same if such records are competent, relevant
and material in any such action or proceeding. The Board shall have
the right to take judicial notice of all studies, reports, statistical data or
any other official reports or records of the federal government or of
any sister state and all such records, reports and data may be placed
in evidence by the Board or by any other person or interested party
where material, relevant and competent. (1967, c. 1157, s. 10.)
87-93. Judicial review.-Any person against whom any final order or
decision has been made except where no appeal is allowed as provided by 143-
215.2 (j) shall have a right of appeal to the Superior Court of Wake County or of
the county where the order or decision is effective within 30 days after such order
or decision has become final. Upon such appeal the Board shall send a certified
transcript of all testimony and exhibits introduced before the Board, the order or
decision, and the notice of appeal to the superior court. The matter on appeal shall
be heard and determined de novo on the transcript certified to the court and any
evidence or additional evidence as shall be competent under rules of evidence then
applicable to trials in the superior court without a jury upon any question of fact;
provided, the court shall allow any party to introduce evidence or additional evi-
dence upon any question of fact. At the conclusion of the hearing, the judge shall
make findings of fact and enter his decision thereto. Appeals from the judgment
and orders of the superior court shall lie to the Supreme Court. No bond shall be
required of the Board to the Supreme Court.
(1) Upon appeal filed by any party, the Board shall forthwith furnish each
party to the proceeding with a copy of the certified transcript and
exhibits filed with the Board. A reasonable charge shall be paid the
Board for said copies.
(2) Within 15 days after receipt of copy of certified transcript and exhibits,
any party may file with the court exceptions to the accuracy or omis-
sions of any evidence or exhibits included in or excluded from said
transcript. (1967, c. 1157, s. 11.)
87-94. Penalties.-Any person who violates any provisions of this article,
or regulations issued hereunder, or order pursuant thereto, shall be subject to
penalty of one hundred dollars ($100.00). In addition, if any person is adjudged
to have committed such violation willfully, the court may determine that each day
during which such violation continued constitutes a separate violation. (1967, c.
1157, s. 12.)
87-95. Injunctive relief.-Upon violation of any of the provisions of this
article, the Director of the Department may, either before or after the institution of
proceedings for the collection of the penalty imposed by this article for such
violations, institute a civil action in the superior court in the name of the State upon
the relation of the Director of the Department for injunctive relief to restrain the
violation and for such other or further relief in the premises as said court shall
deem proper. Neither the institution of the action nor any of the proceedings
thereon shall relieve any party to such proceedings from the penalty prescribed by
this article for any violation of same. (1967, c. 1157, s. 13.)


87-93


87-95





87-96 WATER AND AIR RESOURCES 105-122

87-96. Conflict with other laws.-The provisions of any law, or regula-
tion of the State or any municipality establishing standards affording greater
protection to the public welfare, safety, health and ground-water resources shall
prevail within the jurisdiction of such agency or municipality over the provisions
of this article and regulations adopted hereunder.
This article or any rules or regulations adopted pursuant thereto, shall not be in
conflict with any laws, rules, or regulations of the State Board of Health pertaining
to public health, wells and ground-water supplies. All laws, rules, and regulations
presently in effect that are administered by the State Board of Health shall remain
in effect. (1967, c. 1157, s. 14.)


Chapter 105.
Taxation.
SUBCHAPTER I. LEVY OF TAXES. SUBCHAPTER II. ASSESSMENT,
LISTING AND COLLECTION
Article 3. OF TAXES.
Schedule C. Franchise Tax. Article 15.
Sec.
105-122. Franchise or privilege tax on do- Classification, Valuation and Taxation
mestic and foreign corpora- of Property.
tions. Sec.
105-294. Taxes to be on uniform assess-
Article 4. ment basis as to class.
Schedule D. Income Tax. Article 16.
Exemptions and Deductions.
Division II. Individual Income Tax. 105-296. Real property exempt.
105-147. Deductions. 105-297. Personal property exempt.

SUBCHAPTER I. LEVY OF TAXES.

ARTICLE 3.
Schedule C. Franchise Tax.
105-122. Franchise or privilege tax on domestic and foreign
corporations.--(a) Every corporation, domestic and foreign, incorporated, or,
by an act, domesticated under the laws of this State or doing business in this State,
except as otherwise provided in this article or schedule, shall, on or before the
fifteenth day of the third month following the end of its income year, annually,
make and deliver to the Commissioner of Revenue in such form as he may pre-
scribe a full, accurate and complete report and statement signed by either its
president, vice-president, treasurer, assistant treasurer, secretary or assistant sec-
retary, containing such facts and information as may be required by the Commis-
sioner of Revenue as shown by the books and records of the corporation at the
close of such income year.
There shall be annexed to the return required by this subsection the affirmation
of the officer signing the return in the following form: "Under penalties prescribed
by law, I hereby affirm that to the best of my knowledge and belief this return, in-
cluding any accompanying schedules and statements, is true and complete. If pre-
pared by a person other than taxpayer, his affirmation is based on all information
of which he has any knowledge."
(b) Every such corporation taxed under this section shall determine the total
amount of its issued and outstanding capital stock, surplus and undivided profits;
no reservation or allocation from surplus or undivided profits shall be allowed
other than for definite and accrued legal liabilities, except as herein provided;
taxes accrued, dividends declared and reserves for depreciation of tangible assets
20







as permitted for income tax purposes shall be treated as deductible liabilities.
There shall also be treated as a deductible liability reserves for the entire cost of
any air cleaning device or sewage or waste treatment plant, including waste lagoons,
and pollution abatement equipment purchased or constructed and installed which
reduces the amount of air or water pollution resulting from the emission of air
contaminants or the discharge of sewage and industrial wastes or other polluting
materials or substances into the outdoor atmosphere or streams, lakes, or rivers,
upon condition that the corporation claiming such deductible liability shall furnish
to the Commissioner a certificate from the Board of Water and Air Resources
certifying that said Board has found as a fact that the air cleaning device, waste
treatment plant or pollution abatement equipment purchased or constructed and
installed as above described has actually been constructed and installed and that
such plant or equipment complies with the requirements of said Board with re-
spect to such devices, plants or equipment, that such device, plant or equipment
is being effectively operated in accordance with the terms and conditions set forth
in the permit, certificate of approval, or other document of approval issued by the
Board of Water and Air Resources and that the primary purpose thereof is to
reduce air or water pollution resulting from the emission of air contaminants or
the discharge of sewage and waste and not merely incidental to other purposes and
functions. The cost of constructing facilities of any private or public utility built
for the purpose of providing sewer service to residential and outlying areas shall
be treated as deductible for the purposes of this section; the deductible liability
allowed by this section shall apply only with respect to such pollution abatement
plants or equipment constructed or installed on or after January 1, 1955. Treasury
stock shall not be considered in computing the capital stock, surplus and undivided
profits as the basis for franchise tax, but shall be excluded proportionately from
said capital stock, surplus and undivided profits as the case may be upon the basis
and to the extent of the cost thereof.
Every corporation doing business in this State which is a parent, subsidiary,
or affiliate of another corporation shall add to its capital stock, surplus and un-
divided profits all indebtedness owed to or endorsed or guaranteed by a parent,
subsidiary or affiliated corporation as a part of its capital used in its business and
as a part of the base for franchise tax under this section. The term "indebtedness"
as used in this paragraph shall include all loans, credits, goods, supplies or other
capital of whatsoever nature furnished by a parent, subsidiary, or affiliated corpo-
ration. The terms "parent," "subsidiary," and "affiliate" as used in this paragraph
shall have the meaning specified in 105-130.6. If any part of the capital of the
creditor corporation is capital borrowed from a source other than a parent, subsid-
iary or affiliate, the debtor corporation, which is required under this paragraph to
include in its tax base the amount of debt by reason of being a parent, subsidiary,
or affiliate of the said creditor corporation, may deduct from the debt thus included
a proportionate part determined on the basis of the ratio of such borrowed capital
as above specified of the creditor corporation to the total assets of the said creditor
corporation. Further, in case the creditor corporation as above specified is also
taxable under the provisions of this section, such creditor corporation shall be
allowed to deduct from the total of its capital, surplus and undivided profits the
amount of any debt owed to it by a parent, subsidiary or affiliated corporation to
the extent that such debt has been included in the tax base of said parent, sub-
sidiary or affiliated debtor corporation reporting for taxation under the provisions
of this section.
(c) (1) After ascertaining and determining the amount of its capital stock,
surplus and undivided profits, as provided herein, every such corpora-
tion permitted to allocate and apportion its net income for income tax
purposes under the provisions of article 4 of this chapter shall apportion
said capital stock, surplus and undivided profits to this State through
use of the fraction computed for apportionment of its business income
under said article.


105-122


105-122


TAXATION






105-122 WATER AND AIR RESOURCES 105-122

Provided, that although a corporation is authorized by the Tax Re-
view Board to apportion its business income by use of an alternative
formula or method, the corporation may not use such alternative
formula or method for apportioning its capital stock, surplus and un-
divided profits unless specifically authorized to do so by order of the
Tax Review Board.
Provided, further, that a corporation which is required to pay an
income tax to this State on its entire net income shall apportion its
entire capital stock, surplus and undivided profits to this State.
(2) If any corporation believes that the method of allocation or apportion-
ment hereinbefore described as administered by the Commissioner of
Revenue has operated or will so operate as to subject it to taxation
on a greater portion of its capital stock, surplus and undivided profits
than is reasonably attributable to business within the State, it shall be
entitled to file with the Tax Review Board a petition setting forth the
facts upon which its belief is based and its argument with respect to
the application of the allocation formula. This petition shall be filed in
such form and within such time as the Tax Review Board may pre-
scribe. The Board shall grant a hearing thereon. At least three mem-
bers of the Tax Review Board shall attend any hearing pursuant to
such petition. In such cases the Tax Review Board's membership shall
be augmented by the addition of the Commissioner of Revenue, who
shall sit as a member of said Board with full power to participate
in its deliberations and decisions with respect to petitions filed under
the provisions of this section. An informal record containing in sub-
stance the evidence, contentions and arguments presented at the hear-
ing shall be made. All members of the augmented Tax Review Board
shall consider such evidence, contentions and arguments, and the de-
cision thereon shall be made by a majority vote of the augmented
Board. If the Board shall find that the application of the allocation
formula subjects the corporation to taxation on a greater portion of
its capital stock, surplus and undivided profits than is reasonably at-
tributable to its business within this State:
a. If the corporation shall employ in its books of account a detailed
allocation of receipts and expenditures which reflects more
clearly than the applicable allocation formula or alternative
formulas prescribed by this section the portion of the capital
stock, surplus and undivided profits attributable to the business
within this State, application for permission to base the return
upon the taxpayer's books of account shall be considered by the
Tax Review Board. The Board shall be authorized to permit
such separate accounting method in lieu of applying the appli-
cable allocation formula if the Board deems such method proper
as best reflecting the portion of the capital stock, surplus and
undivided profits attributable to this State.
b. If the corporation shall show that any other method of allocation
than the applicable allocation formula or alternative formulas
prescribed by this section reflects more clearly the portion of the
capital stock, surplus and undivided profits attributable to the
business within this State, application for permission to base
the return upon such other method shall be considered by the
Tax Review Board. The application shall be accompanied by a
statement setting forth in detail, with full explanations, the
method the taxpayer believes will more nearly reflect the por-
tion of its capital stock, surplus and undivided profits attrib-
utable to the business within this State. If the Board shall con-
clude that the allocation formula and the alternative formulas
22







prescribed by this section allocate to this State a greater por-
tion of the capital stock, surplus and undivided profits of the
corporation than is reasonably attributable to business within
this State, it shall determine the allocable portion by such other
method as it shall find best calculated to assign to this State for
taxation the portion reasonably attributable to its business with-
in this State.
There shall be a presumption that the appropriate allocation formula
reasonably attributes to this State the portion of the corporation's cap-
ital stock, surplus and undivided profits reasonably attributable to its
business in this State and the burden shall rest upon the corporation
to show the contrary. The relief herein authorized shall be granted by
the Board only in cases of clear, cogent and convincing proof that the
petitioning taxpayer is entitled thereto. No corporation shall use any
alternative formula or method other than the applicable allocation for-
mula provided by statute in making a franchise tax report or return to
this State except upon order in writing of the Board and any return
in which any alternative formula or other method other than the ap-
plicable allocation formula prescribed by statute is used without the
permission of the Board, shall not be a lawful return.
When the Board determines, pursuant to the provisions of this ar-
ticle, that an alternative formula or other method more accurately re-
flects the portion of the capital stock, surplus and undivided profits al-
locable to North Carolina and renders its decision with regard there-
to, the corporation shall allocate its capital stock, surplus and undivided
profits for future years in accordance with such determination and de-
cision of the Board so long as the conditions constituting the basis up-
on which the decision was made remain unchanged or until such time
as the business method of operation of the corporation changes. Pro-
vided, however, that the Commissioner of Revenue may, in his discre-
tion, with respect to any subsequent year, require the corporation to
furnish information relating to its property, operations and activities.
A corporation which proposes to do business in this State may file
a petition with the Board setting forth the facts upon which it con-
tends that the applicable allocation formula will allocate a greater por-
tion of the corporation's capital stock, surplus and undivided profits
to North Carolina than will be reasonably attributable to its proposed
business within the State. Upon a proper showing in accordance with
the procedure described above for determination by the Board, the
Board may authorize such corporation to allocate its capital stock, sur-
plus and undivided profits to North Carolina on the basis prescribed
by the Board under the provisions of this section for such future years
as the conditions constituting the basis upon which the Board's deci-
sion is made remain unchanged and the business operations of the
corporation continue to conform to the statement of proposed methods
of business operations presented by the corporation to the Board.
When the Commissioner of Revenue asserts liability under the for-
mula adjustment decision of the Tax Review Board, an aggrieved tax-
payer may pay the tax under protest and bring a civil action for re-
covery under the provisions of G.S. 105-241.4.
(3) The proportion of the total capital stock, surplus and undivided profits of
each such corporation so allocated shall be deemed to be the propor-
tion of the total capital stock, surplus and undivided profits of each such
corporation used in connection with its business in this State and lia-
ble for annual franchise tax under the provisions of this section.


105-122


TAXATION


105-122




WATER AND AIR RESOURCES


(d) After determining the proportion of its total capital stock, surplus and un-
divided profits as set out in subsection (c) of this section, which amount so de-
termined shall in no case be less than the total assessed value (including total
gross valuation returned for taxation of intangible personal property) of all the
real and personal property in this State of each such corporation as herein speci-
fied nor less than its total actual investment in tangible property in this State,
every corporation taxed under this section shall annually pay to the Commissioner
of Revenue, at the time the report and statement are due, a franchise or privilege
tax, which is hereby levied, at the rate of one dollar and fifty cents ($1.50)
per one thousand dollars ($1,000.00) of the total amount of capital stock, surplus
and undivided profits as herein provided. The tax imposed in this section shall
in no case be less than ten dollars ($10.00) and shall be for the privilege of carry-
ing on, doing business, and/or the continuance of articles of incorporation or
domestication of each such corporation in this State: Provided, that the basis for
the franchise tax on all corporations, eighty percent (80%) of whose outstanding
capital stock is owned by persons or corporations to whom or to which such stock
was issued prior to January 1, 1935, in part payment or settlement of their re-
spective deposits in any closed bank of the State of North Carolina, shall be the
total assessed value of the real and tangible personal property of such corporation
in this State for the calendar year next preceding the date on which report and
statement is due under the provisions of this section. Assessed value of tangible
property including real estate shall be the assessed ad valorem valuation for the
calendar year next preceding the due date of the franchise tax return. Assessed
value of intangible property, except for bank deposits subject to tax under the
provisions of 105-199, shall be the total gross valuation required to be reported
for intangible tax purposes on April 15 coincident with or next preceding the due
date of the franchise tax return. Assessed value of bank deposits subject to tax
under the provisions of 105-199 shall be the average balance determined under
such section for the calendar year next preceding the due date of the franchise tax
return. The term "total actual investment in tangible property" as used in this
section shall be construed to mean the total original purchase price or consider-
ation to the reporting taxpayer of its tangible properties, including real estate, in
this State plus additions and improvements thereto less reserve for depreciation as
permitted for income tax purposes, and also less any indebtedness incurred and
existing by virtue of the purchase of any real estate and any permanent improve-
ments made thereon. In computing "total actual investment in tangible personal
property" there shall also be deducted reserves for the entire cost of any air cleaning
device or sewage or waste treatment plant, including waste lagoons, and pollution
abatement equipment purchased or constructed and installed which reduces the
amount of air or water pollution resulting from the emission of air contaminants
or the discharge of sewage and industrial wastes or other polluting materials or
substances into the outdoor atmosphere or into streams, lakes, or rivers, upon
condition that the corporation claiming such deduction shall furnish to the Com-
missioner a certificate from the Board of Water and Air Resources certifying that
said Board has found as a fact that the air cleaning device, waste treatment plant or
pollution abatement equipment purchased or constructed and installed as above
described has actually been constructed and installed and that such device, plant
or equipment complies with the requirements of said Board with respect to such
devices, plants or equipment, that such device, plant or equipment is being effec-
tively operated in accordance with the terms and conditions set forth in the permit,
certificate of approval, or other document of approval issued by the Board of
Water and Air Resources and that the primary purpose thereof is to reduce air or
water pollution resulting from the emission of air contaminants or the discharge
of sewage and waste and not merely incidental to other purposes and functions.
The cost of constructing facilities of any private or public utility built for the
purpose of providing sewer service to residential and outlying areas shall be


105-122


105-122








treated as deductible for the purposes of this section; the deductible liability al-
lowed by this section shall apply only with respect to such pollution abatement
plants or equipment constructed or installed on or after January 1, 1955.
In determining the total tax payable by any corporation under this section there
shall be allowed as credit on such tax the amount of intangible tax paid on bank
deposits under the provisions of 105-199 to the extent that such deposits have
been concurrently included in the alternative assessed value tax base pursuant to
the provisions of this subsection except that the minimum tax herein provided
shall not be less than ten dollars ($10.00). In determining the total tax payable
by any corporation under 105-115 there shall be allowed as credit on such tax
the amount of intangible tax paid during the preceding franchise tax year on bank
deposits under the provisions of 105-199.
(e) Any corporation which changes its income year, and files a "short period"
income tax return pursuant to 105-142 shall file a franchise tax return in ac-
cordance with the provisions of this section in the manner and as of the date speci-
fied in subsection (a) of this section. Such corporation shall be entitled to deduct
from the total franchise tax computed (on an annual basis) on such return the
amount of franchise tax previously paid which is applicable to the period subse-
quent to the beginning of the new income year.
(f) The report, statement and tax required by this section shall be in addition
to all other reports required or taxes levied and assessed in this State.
(g) Counties, cities and towns shall not levy a franchise tax on corporations
taxed under this section.
(h) Any corporation whose franchise tax return is due July 15, 1968, or August
15, 1968, the following credit shall be allowed from the total net franchise tax
computed on such return. For any corporation whose franchise tax return is due
July 15, 1968, the allowable credit shall be an amount equal to two twelfths of the
total net franchise tax computed on such return. For any corporation whose
franchise tax return is due August 15, 1968, the allowable credit shall be an amount
equal to one twelfth of the total net franchise tax computed on such return.
Notwithstanding any other provisions of this article, the taxes levied in 105-
122 and 105-123 for the State's fiscal year, July 1, 1967, through June 30, 1968,
shall be for that period and also for the period beginning on July 1, 1968, and end-
ing on the last day of each corporation's then current income year provided the
income tax return for such current income year is due before July 15, 1969.
(1939, c. 158, s. 210; 1941, c. 50, s. 4; 1943, c. 400, s. 3; 1945, c. 708, s. 3; 1947,
c. 501, s. 3; 1951, c. 643, s. 3; 1953, c. 1302, s. 3; 1955, c. 1100, s. 2Y2: c. 1350,
s. 17; 1957, c. 1340, s. 3; 1959, c. 1259, s. 3; 1963, c. 1169, s. 1; 1967, c. 286;
c. 892, ss. 10, 11; c. 1110, s. 2.)
Editor's Note.-The 1951 amendment re- The 1959 amendment inserted "or deal-
wrote this section as changed by the 1941, ing in tangible personal property" near
1943, 1945 and 1947 amendments, the beginning of subsection (c) (1).
The 1953 amendment inserted in the first The 1963 amendment, effective July 1,
sentence of subsection (a) the provision as 1963, inserted "and gross receipts received
to signing the report and statement in lieu from the casual sale of property used in
of the former provision as to the verifica- production of income in the trade or busi-
tion thereof, and added all of the subsec- ness" in the last sentence of subsection
tion beginning with the second paragraph. (c) (2).
The amendment also made changes in sub- Session Laws 1967, c. 892, ss. 10, 11,
section (c). substituted the present second and third
The first 1955 amendment inserted the sentences of subsection (b) for the former
second sentence of 'he first paragraph of second sentence and the present last two
subsection (b), and added the former last sentences of the first paragraph of subsec-
sentence of the first paragrpah of subsec- tion (d) for the former last sentence of
tion (d). The second 1955 amendment made that paragraph.
changes in subsection (c). For brief comment on the 1953 amend-
The 1957 amendment rewrote subsection ment, see 31 N. C. Law Rev. 435, 441.
(a) and made changes in subsection (c). Amendments Effective July 1, 1968.-


105-122


105-122


TAXATION






WATER AND AIR RESOURCES


Session Laws 1967, c. 286, effective July 1,
1968, will change the provisions as to the
due date of the tax, rewrite the form of
affirmation in subsection (a) and delete
the former last paragraph in subsection
(b); in subsection (d) the amendment will
substitute "as herein specified" for "for the
year in which report is due" in the first
sentence and "calendar year next preced-
ing the date on" for "year in" in the sec-
ond sentence, insert the third, fourth and
fifth sentences and rewrite the last para-
graph; the amendment also will insert a
new subsection (e), redesignate subsections
(e) and (f) as (f) and (g), respectively,
and add subsection (h).
Session Laws 1967, c. 1110, s. 2, effec-
tive July 1, 1968, and applicable to all re-
turns due on or after that date, will insert
"or doing business in this State" near the
beginning of subsection (a), add the sec-
ond sentence to the form of affidavit in the
second paragraph of subsection (a), delete
the last sentence of the second paragraph
oi subsection (a), substitute 105-130.6"
for 105-143" at the end of the third
sentence of the second paragraph of sub-
section (b), delete the opening paragraph
of subsection (c), rewrite subdivision (1)
and delete subdivision (2) of subsection
(c) and redesignate subdivisions (3) and
(4) of subsection (c) as (2) and (3) re-
spectively.
Section 16, c. 1110, Session Laws 1967,
provides: "This act shall not affect the lia-
bility of any taxpayer arising prior to the
effective date of the applicable section
hereof."
As affected by the two amendments,
the section will read as set out above.
The cases appearing in this note were
decided prior to the 1967 amendments.
Power of Legislature.-It is within the
legislative power of taxation, in respect to
corporations, to levy any two or more of
the following taxes simultaneously (1) on
the franchise (including corporate divi-
dends); (2) on the capital stock; (3) on
the tangible property of the corporation,
and (4) on the shares of the capital stock
in the hands of the stockholders. The tax
on the two subjects last named is impera-
tive. Board v. Blackwell Durham Tobacco
Co., 116 N. C. 441, 21 S. E. 423 (1895).
Foreign corporations do business here
by comity of the State, and the latter may
impose a license tax as a condition upon
which such corporations may do business
here under the protection of our laws,
where such is not an interference with in-


terstate commerce, or the tax is not other-
wise invalid. Pittsburgh Life, etc., Co. v.
Young, 172 N. C. 470, 90 S. E. 568 (1916).
Tax Is on Privilege of Existence.-By
the express terms of Laws 1931, c. 427, s.
210, which was superseded by this section,
the corporation was liable for the annual
franchise tax for each year during which
it enjoyed the privilege of the continuance
of its charter. It was immaterial whether
or not the corporation exercised its privi-
lege of doing or carrying on the business
authorized by its charter or certificate of
incorporation; it was liable so long as it
enjoyed the privilege granted by the State
of "being" a corporation. Stagg v. Nessen
Co., 208 N. C. 285, 180 S. E. 658 (1935).
Corporation Not Relieved of License
Tax on Carrying on Particular Business.-
The franchise tax imposed upon every
corporation doing business in the State is
a tax upon the privilege of being a corpo-
ration, and its payment does not relieve it,
or its lessee, from the payment of a tax
imposed upon the privilege of carrying on
the particular kind of business for which
the corporation was chartered. Cobb v.
Commissioners, 122 N. C. 307, 30 S. E. 338
(1898).
A textile finishing plant engaged in pro-
cessing by mechanical and chemical means,
for a fee on a contractual basis, unfinished
textile goods owned by others into finished
textile goods with qualities and character-
istics different from those of the unfinished
material, is engaged in manufacturing with-
in the purview of this section for the pur-
pose of computing its franchise tax liabil-
ity Sayles Biltmore Bleacheries, Inc. v.
Johnson, 266 N.C. 692, 147 S.E.2d 177
(1966).
Effect of Business Corporation Act on
Section.-It is illogical to assume that the
legislature intended by the Business Cor-
poration Act to void regulations permit-
ting computation of taxes on the cash re-
ceipt basis and thereby outlaw that method
of accounting, or to invalidate an accepted
method of determining capital and surplus
for franchise tax returns required by this
section. Watson v. Watson Seed Farms,
Inc., 253 N. C. 238, 116 S. E. (2d) 716
(1961).
Quoted in Duke Power Co. v. Bowles,
229 N. C. 143, 48 S. E. (2d) 287 (1948).
Cited in Petition of Vanderbilt Univer-
sity, 252 N. C. 743, 114 S. E. (2d) 655
(1960); Southern Bell Tel. & Tel. Co. v.
Clayton, 266 N.C. 687, 147 S.E.2d 195
(1966).


105-122


105-122








ARTICLE 4.
Schedule D. Income Tax.
DIVISION II. INDIVIDUAL INCOME TAX.
105-147. Deductions.-In computing net income there shall be allowed
as deductions the following items:

(13) In lieu of any depreciation allowance pursuant to this section, at the
option of the taxpayer, an allowance with respect to the amortization
of the cost of any air cleaning device, sewage or waste treatment plant,
including waste lagoons, and pollution abatement equipment purchased
or constructed and installed which reduces the amount of air or water
pollution resulting from the discharge of sewage and industrial wastes
or other polluting materials or substances into streams, lakes, or rivers,
or the emission of air contaminants into the outdoor atmosphere, based
on a period of 60 months. The deduction provided herein shall apply
to the facilities or equipment of private or public utilities built and
installed primarily for the purpose of providing sewer service to resi-
dential and outlying areas. The deduction provided for in this sub-
division shall be allowed by the Commissioner only upon condition
that the person or firm claiming such allowance shall furnish to the
Commissioner a certificate from the Board of Water and Air Resources
certifying that said Board has found as a fact that the waste treatment
plant, air cleaning device, or air or water pollution abatement equip-
ment purchased or constructed and installed as above described has
actually been constructed and installed and that such plant or equipment
complies with the requirements of said Board with respect to such
plants or equipment, that such plant, device, or equipment is being
effectively operated in accordance with the terms and conditions set
forth in the permit, certificate of approval, or other document of ap-
proval issued by the Board of Water and Air Resources, and that the
primary purpose thereof is to reduce air or water pollution resulting
from the emission of air contaminants or the discharge of sewage and
waste and not merely incidental to other purposes and functions. The
deduction herein provided for shall also be allowed as to plants or
equipment constructed or installed before January 1, 1955, but only
with respect to the undepreciated value of such plants or equipment.


Editor's Note. Subdivision (13) was
rewritten by Session Laws 1967, c. 892, s.
6, ratified June 22, 1967, and effective on
ratification. Chapter 892 was introduced in
the General Assembly as House Bill 356.
As rewritten by c. 892, this subdivision was
applicable to a "person, firm or corpora-
tion."
Session Laws 1967, c. 1110, s. 3 (w) (14),
ratified July 4, 1967, and applicable to all
taxable years beginning on or after Jan-
uary 1, 1967, amended this subdivision by
"deleting both commas in line 9 and by in-
serting the word 'or' in line 9 of subsection
(13) immediately preceding the word
'firm'; and deleting from line 10 the words
and punctuation 'or corporation,' which
appear immediately preceding the word


'claiming';". Chapter 1110 was introduced
in the General Assembly as Senate Bill 183
and obviously has reference to subdivision
(13) as codified in 1965, Replacement
Volume 2D of the General Statutes. In
addition to this and other amendments,
c. 1110 inserted a new division in article 4,
designated "Corporation Income Tax."
This new division includes a new 105-
130.10, applicable only to corporations, but
otherwise substantially the same as 105-
147 (13) prior to its amendment by c. 892.
In codifying the 1967 enactments, the
provisions of c. 1110, s. 3 (w) (14) have
been applied to subdivision (13), as
amended by c. 892, s. 6, so as to delete the
reference to corporations.


TAXATION


105-147


105-147




WATER AND AIR RESOURCES


SUBCHAPTER II. ASSESSMENT, LISTING AND
COLLECTION OF TAXES.

ARTICLE 15.
Classification, Valuation and Taxation of Property.
105-294. Taxes to be on uniform assessment basis as to class.-
All property, real and personal, shall as far as practicable be appraised or valued
at its true value in money. The intent and purpose of this section is to have all
property and subjects of taxation appraised at their true and actual value in money,
in such manner as such property and subjects of taxation are usually sold, but
not by forced sale thereof; and the words "market value," "true value," or "cash
value," whenever used in this chapter, shall be held to mean for the amount of
cash or receivables the property and subjects can be transmuted into when sold
in such manner as such property and subjects are usually sold.
In the year in which a revaluation of real property, conducted in a county un-
der the provisions of G.S. 105-278, is to take effect, and annually thereafter,
the board of county commissioners shall select and adopt some uniform percent-
age of the amount at which property has been appraised as the value to be used
in taxing property. The percentage selected shall be adopted by resolution of the
board of county commissioners prior to the first meeting of the board of equali-
zation and review, and such percentage shall be known as the assessment ratio.
Before the adoption of the resolution, representatives of municipalities and other
taxing authorities required by this section to use the assessments determined by
the board of county commissioners shall be given an opportunity to make recom-
mendations as to that assessment ratio which would provide a reasonable and
adequate tax base in each such municipality or other taxing unit. The board shall
give due consideration to any recommendation so made, but final action selecting
and adopting the assessment ratio shall be taken by the board. Within ten days
after adopting its assessment ratio, the board of county commissioners shall for-
ward a certified copy of the adoption resolution to the State Board of Assessment.
The percentage or assessment ratio selected shall be applied to the appraised
value of all real and personal property subject to assessment in the county. The
tax records of the county shall show for all property both the appraisal value
and the assessed value for tax purposes. Taxes levied by all counties, municipali-
ties, and other local taxing authorities shall be levied uniformly on assessments
so determined.
In the fourth year following revaluation of real property by actual appraisal
as required by G.S. 105-278, each county shall review its appraisal values and
make whatever revisions are needed to bring them into line with current market
or cash value, such revisions to be made horizontally only, by uniform percent-
ages of increase or reduction rather than by actual appraisal and reassessment of
individual properties. To the appraisal values thus revised, each county shall, for
tax assessment purposes, apply the assessment ratio selected and adopted as herein-
above provided.
It is hereby declared to be the policy of this State so to use its system of real
estate taxation as to encourage the conservation of natural resources and the
beautification of homes and roadsides, and all tax assessors are hereby instructed
that in assessing real estate under the provisions of G.S. 105-279 they shall make
no increase in the tax valuation of real estate as a result of the owner's enterprise
in adopting any one or more of the following progressive policies:
(1) Planting and care of lawns, shade trees, shrubs and flowers for noncom-
mercial purposes.
(2) Repainting buildings.
(3) Terracing or other methods of soil conservation, to the extent that they
preserve values already existing.


105-294


105-294








(4) Protection of forests against fire.
(5) Planting of forest trees on vacant land for reforestation purposes (for
ten years after such planting).
It is hereby declared to be the policy of this State to use its system of real
estate taxation in such manner as to encourage the conservation of natural re-
sources and the abatement and prevention of air and water pollution, and all
tax assessors are hereby instructed that in assessing real estate under the pro-
visions of G.S. 105-279 they shall make no increase in the tax valuation of real
estate as the result of the owner's enterprise in installing or constructing or in-
stalling air cleaning devices or waste disposal or water pollution abatement plants,
including waste lagoons, or equipment, upon the condition that a certificate is
furnished to the tax supervisor of the county, wherein such property is located,
by the Board of Water and Air Resources, certifying that said Board has found
as a fact that the waste treatment plant, air cleaning device, or air or water pollu-
tion abatement equipment purchased or constructed and installed as above de-
scribed has actually been constructed and installed and that such plant, device, or
equipment complies with the requirements of said Board with respect to such
plants, devices, or equipment, that such plant, device, or equipment is being effec-
tively operated in accordance with the terms and conditions set forth in the permit,
certificate of approval, or other document of approval issued by the Board of Water
and Air Resources, and that the primary purpose thereof is to reduce air or water
pollution resulting from the emission of air contaminants or the discharge of
sewage and waste and not merely incidental to other purposes and functions; pro-
vided, this section shall apply to the facilities or equipment of private or public
utilities built and installed primarily for the purpose of providing sewer service to
residential and outlying areas. (1939, c. 310, s. 500; 1953, c. 970, s. 5; 1955, c.
1100, s. 2; 1959, c. 682; 1967, c. 892, s. 7.)
Local Modification.-Polk: 1963, c. 751. and inserted the second, third and fourth
Editor's Note.-The 1953 amendment re- paragraphs.
wrote the latter part of the present fifth The 1967 amendment rewrote the last
paragraph preceding the numbered listing paragraph.
therein. Applied in In re Carolina Quality Block
The 1955 amendment added the last Co., 270 N. C. 765, 155 S.E.2d 263 (1967).
paragraph. Cited in DeLoatch v. Beamon, 252 N. C.
The 1959 amendment, effective as of 754, 114 S. E. (2d) 71 (1960).
Jan. 1, 1960, rewrote the first paragraph

ARTICLE 16.
Exemptions and Deductions.

105-296. Real property exempt.-The following real property, and no
other, shall be exempted from taxation:

(11) Real property, or so much thereof, which is used exclusively for air
cleaning or waste disposal or air or water pollution abatement facili-
ties, including waste lagoons, designed to abate, reduce, or prevent
pollution of air or water. This exemption is allowed only upon the
condition that a certificate is furnished to the tax supervisor of the
county, wherein such property is located, by the Board of Water and
Air Resources, certifying that said Board has found as a fact that
the air cleaning device or the waste treatment plant, including waste
lagoons, or pollution abatement equipment above described has been
constructed or installed thereon and that such plant, device or equip-
ment complies with the requirements of said Board with respect to
such plants, devices or equipment, that such plant, device or equip-
ment is being effectively operated in accordance with the terms and


105-296


105-296


TAXATION






WATER AND AIR RESOURCES


conditions set forth in the permit, certificate of approval, or other
document of approval issued by the Board of Water and Air Re-
sources, and that the primary purpose thereof is to reduce air or
water pollution resulting from the emission of air contaminants or the
discharge of sewage and waste and not merely incidental to other pur-
poses and functions. The exemption provided in this section shall apply
to the facilities or equipment of private or public utilities built and
installed primarily for the purpose of providing sewer service to resi-
dential and outlying areas. The exemption herein provided for shall be
applicable only with respect to taxes levied in 1955 and subsequent
years.

105-297. Personal property exempt.-The following personal property,
and no other, shall be exempt from taxation:

(16) Air cleaning devices, sewage and waste treatment facilities, and air or
water pollution abatement equipment designated to abate, reduce, or
eliminate air or water pollution. This exemption shall be allowed only
upon the condition that a certificate is furnished to the tax supervisor
of the county, wherein such property is located, by the Board of Water
and Air Resources, certifying that said Board has found as a fact that
the air cleaning device or waste treatment plant or pollution abate-
ment equipment purchased or constructed or installed as above de-
scribed has actually been constructed and installed and that such plant
or equipment complies with the requirements of said Board with respect
to such devices, plants, or equipment, that such device, plant or equip-
ment is being effectively operated in accordance with the terms and
conditions set forth in the permit, certificate of approval, or other
document of approval issued by the Board of Water and Air Resources,
and that the primary purpose thereof is to reduce air or water pollution
resulting from the emission of air contaminants or the discharge of
sewage and waste and not merely incidental to other purposes and
functions. The exemption herein provided shall apply to facilities or
equipment of private or public utilities built and installed primarily for
the purpose of providing sewer service to residential and outlying areas.
The exemption herein provided for shall be applicable only with respect
to taxes levied in 1955 and subsequent years.
***


105-297


105-297






WATER AND SEWER SANITATION


Chapter 130.

Public Health.
Article 13. Sec.
Water and Sewer Sanitation. 130-161. Systems of water supply and sew-
Sec. erage; plans submitted.
130-157. Sanitary engineering and sanita- 130-162. Condemnation of lands for water
tion units. supply.
130-158. Persons supplying water to pro- 130-163. Sanitation of watersheds; rules.
tect its purity. 130-164. Defiling public water supply.
130-159. Board of Health to control and 130-165. Discharge of sewage or industrial
examine waters; rules, waste.
130-160. Sanitary sewage disposal; rules. 130-166. Sewage disposal on watersheds.

ARTICLE 13.
Water and Sewer Sanitation.
130-157. Sanitary engineering and sanitation units.-For the pur-
pose of promoting a safe and healthful environment, and developing such corrective
measures as may be required to minimize environmental health hazards, the State
Board of Health shall maintain appropriate units of sanitary engineering and sani-
tation. The State Health Director shall employ such sanitary engineers, sanitarians,
and other scientific personnel as are necessary to carry out the provisions of this
article and to make such other sanitary engineering and sanitation investigations
and inspections as are required of the State Board of Health by law, or by regu-
lations of the State Board of Health. (1957, c. 1357, s. 1.)
130-158. Persons supplying water to protect its purity.-In the
interest of the public health, every person, company, or municipal corporation or
agency thereof supplying water to the public for drinking and household purposes
shall take every reasonable precaution to protect from contamination and assure
the healthfulness of such water, and any provisions in any charters heretofore
granted to such persons, companies, or municipal corporations in conflict with the
provisions of this article are hereby repealed. (1899, c. 670, s. 1; 1903, c. 159, s.
1; Rev., s. 3058; 1911, c. 62, s. 24; C. S., s. 7116; 1957, c. 1357, s. 1.)
130-159. Board of Health to control and examine waters; rules.
-The State Board of Health shall have the general oversight and care of all in-
land waters to cause examination of said waters and their sources and surround-
ings to be made for the purpose of ascertaining whether the same are adapted
for use as water supplies for drinking and other domestic purposes, or are in a
condition likely to imperil the public health. The State Board of Health shall
make reasonable rules and regulations governing the location, construction, and
operation of public water and sewer facilities. Provided, that after the "effective
date" applicable to any watershed as provided for in G. S. 143-215, any rules and
regulations adopted by the State Board of Health under this section governing
the location, construction, and operation of public sewerage facilities shall be ef-
fective only with respect to the administration of said Board's responsibilities as
set forth by G. S. 143-215.1 (a) (5). (1911, c. 62, s. 24; C. S., s. 7117; 1957, c.
1357, s. 1; 1959, c. 779, s. 9.)
Editor's Note. The 1959 amendment
added the proviso.
130-160. Sanitary sewage disposal; rules.-Any person owning or
controlling any residence, place of business or place of public assembly shall pro-
vide a sanitary system of sewage disposal consisting of an approved privy, an


130-157


130-160




WATER AND AIR RESOURCES


approved septic tank, or a connection to a sewer system, under rules and regula-
tion promulgated by the State Board of Health. (1957, c. 1357, s. 1.)
Applied in Walker v. Sprinkle, 267 N.C.
626, 148 S.E.2d 631 (1966).
130-161. Systems of water supply and sewerage; plans submitted.
-The State Board of Health shall from time to time consult with and advise the
boards of all State institutions, the authorities of cities and towns, and persons al-
ready having or intending to introduce systems of water supply, drainage, or
sewerage, or intending to make major alterations to existing systems of water
supply, drainage, or sewerage, as to the most appropriate source of supply, the best
practical method of assuring the purity thereof, or of disposing of their drainage or
sewerage, having regard to the present and prospective needs and interests of other
cities, towns, and persons which may be affected thereby. All such boards of di-
rectors, authorities, and persons are hereby required to give notice to the State
Board of Health of their intentions to introduce or alter a system of water supply,
drainage or sewerage, and to submit to the Board such plans, surveys, and other
information as may be required by rules and regulations promulgated by the State
Board of Health. No such board of directors, authorities, or persons may enter
into a contract for the introduction or alteration of a system of water supply,
sewage disposal, or drainage until such plans and other information have been re-
ceived, considered and approved by the State Board of Health. Provided, that prior
to the "effective date" applicable to any watershed whenever the State Board of
Health is advised by a municipality that application is being filed with the Board
of Water and Air Resources for a certificate of approval covering a voluntary
pollution abatement project pursuant to G.S. 143-215.2, the plans will be reviewed
by said Board if the effluent from the proposed works is to be discharged into
waters used as a source of public water supply and if approved, said plans shall be
referred to the Board of Water and Air Resources for final approval. If no water
supply is involved, such plans will be referred directly to the Board of Water and
Air Resources and the approval of the Board of Health will not be prerequisite to
the entering of a contract. Provided, further, that after the "effective date" appli-
cable to any watershed as provided for in G.S. 143-215, the Board of Water and
Air Resources, rather than the State Board of Health, shall carry out the provi-
sions of this section relating to sewage and waste disposal, except as otherwise
provided by G.S. 143-215.1 (a) (5), with regard to:
(1) Incorporated municipalities served by public sewerage systems;
(2) Unincorporated communities served by a community sewerage system;
(3) Sanitary districts created pursuant to law which are served by public
sewerage systems;
(4) Industries of all types, except raw milk dairies, farm slaughterhouses,
shellfish processing plants and similar establishments; and those food
and/or lodging establishments which are supervised by the State Board
of Health under other State laws and which are not served by public or
community sewerage systems;
(5) Housing developments served by community sewerage systems; and
(6) Military installations, parks, institutions, and other reservations which
are maintained and operated by the federal government. (1911, c. 62,
s. 24; C. S., s. 7118; 1957, c. 1357, s. 1; 1959, c. 779, s. 9; 1967, c.
892, s. 3.)
Editor's Note. The 1959 amendment of Water and Air Resources" for "State
added the part of the section beginning Stream Sanitation Committee" in four
with the fourth sentence, places in this section.
The 1967 amendment substituted "Board
130-162. Condemnation of lands for water supply. -All munic-
ipalities operating water systems and sewerage systems, and all water companies


130-161


130-162





WATER AND SEWER SANITATION


operating under charter from the State or license from municipalities, which
may maintain public water supplies, may acquire by condemnation such lands
and rights in lands and water as are necessary for the successful operation and
protection of their plants. Condemnation proceedings under this section shall
be the same as prescribed by law under chapter 40 of the General Statutes of
North Carolina. (1903, c. 159, s. 16; 1905, c. 287, s. 2; 1905, c. 544; Rev., s.
3060; 1911, c. 62, s. 25; C. S., s. 7119; 1957, c. 1357, s. 1.)
Editor's Note.-For an article urging tion its water supply is not limited to an
revision and recodification of North Caro- easement, but it has been given power to
lina's eminent domain laws, see 45 N.C.L. condemn the fee for that purpose, and the
Rev. 587 (1967). reference in 40-19 to an easement relates
Power to Condemn Not Limited to to procedure and is not a limitation upon
Easement.-The power of a municipal cor- the power of the municipality. Morgan-
poration to condemn land for its water- ton v. Hutton & Bourbonnais Co., 251 N.
shed in order to protect from contamina- C. 531, 112 S. E. (2d) 111 (1960).
130-163. Sanitation of watersheds; rules.-The State Board of
Health is hereby authorized, empowered and directed to adopt rules and regula-
tions governing the sanitation of watersheds from which public domestic or drink-
ing water supplies are obtained. In promulgating such regulations the Board
is authorized to consider the different classes of watersheds, taking into account
general topography, nature of watershed development, density of population,
need for frequency of sampling of raw water, and particular needs for public
health protection. The regulations shall govern the keeping of livestock, oper-
ation of recreational areas, maintenance of residences and places of business, dis-
posal of sewage, establishment of cemeteries or burying grounds, and any other
factors which would endanger the public water supply, provided, that regulations
concerning the disposal of sewage shall not conflict with G. S. 130-161.
Any municipality or person furnishing water for domestic uses and human
consumption, which secures its water from unfiltered surface supplies, shall have
inspections made of the watershed area at least quarterly, and more often when,
in the opinion of the State Board of Health, such inspections are necessary.
(1899, c. 670; 1903, c. 159, s. 2; Rev., ss. 3045, 3046; 1911, c. 62, s. 28; 1919, c.
71, s. 14; C. S., s. 7121; Ex. Sess. 1921, c. 49, s. 1; 1957, c. 1357, s. 1; 1959, c.
779, s. 9.)
Editor's Note. The 1959 amendment
added the proviso at the end of the first
paragraph.

130-164. Defiling public water supply.-No person shall willfully de-
file, corrupt, or make impure any public or private water supply. No person shall
willfully destroy or injure any pipe, conductor of water, or other property per-
taining to an aqueduct. (1850, c. 104; R. C., c. 34, s. 97; Code, s. 1114; 1893,
c. 214; 1903, c. 159, s. 12; Rev., ss. 3457, 3857; 1911, c. 62, s. 32; C. S., s. 7124;
1957, c. 1357, s. 1.)

130-165. Discharge of sewage or industrial waste.-No person or
municipality shall flow or discharge sewage or industrial waste above the intake into
any source from which a public drinking water supply is taken, unless said sewage
or industrial waste shall have been passed through some system of purification ap-
proved by the State Board of Health and Board of Water and Air Resources; and
the continued flow and discharge of such sewage may be enjoined. (1903, c. 159,
s. 13; Rev., ss. 3051, 3858; 1911, c. 62, ss. 33, 34; C. S., s. 7125; 1957, c. 1357, s.
1; 1959, c. 779, s. 9; 1967, c. 892, s. 3.)
Editor's Note. The 1959 amendment The 1967 amendment substituted "Board
inserted the words "or industrial waste" of Water and Air Resources" for "State
and the words "and State Stream Sanita- Stream Sanitation Committee."
tion Committee." Constitutionality. This section is not


N.C.W.-2


130-163


130-165





WATER AND AIR RESOURCES


unconstitutional as to taking property
without condemnation and without com-
pensation, but is a valid exercise of the po-
lice power of the State to secure the public
health. Durham v. Eno Cotton Mills, 141
N. C. 615, 54 S. E. 453 (1906); Shelby v.
Cleveland Mill, etc., Co., 155 N. C. 196,
71 S. E. 218 (1911); North Carolina State
Board v. Commissioners, 173 N. C. 250, 91
S. E. 1019 (1917).
Sewage Defined.-The meaning of "sew-
age," under this section, is confined to the
liquid and solid matter flowing from the
water closets through the sewer and drain.
Durham v. Eno Cotton Mills, 144 N. C.
705, 57 S. E. 465 (1907).
Dyestuff and fecal matter from privies,
which were not passed through sewer to
river from which water supply was re-
ceived, do not come within the meaning
of this section. Durham v. Eno Cotton
Mills, 144 N. C. 705, 57 S. E. 465 (1907).
This section applies only when a public
drinking-water supply is taken from the
stream, in which instance proof of any in-
jurious effect upon plaintiff's water supply
is not required. Banks v. Burnsville, 228
N. C. 553, 46 S. E. (2d) 559 (1948).
In a suit by private individuals to re-
strain a municipality from emptying un-
treated sewage into a stream from which
a public drinking-water supply is not
taken, a complaint which fails to allege
that plaintiff's own land lies along or ad-
jacent to the stream and that the acts
complained of constitute a nuisance result-
ing in continuing, irreparable damages, is
demurrable. Banks v. Burnsville, 228 N. C.
553, 46 S. E. (2d) 559 (1948).
This section does not impose the manda-
tory duty upon the trial judge of enjoining
a municipality from discharging raw sew-
age into a stream from which another mu-
nicipality takes its water supply, and where
the order prayed for would cause untold
hardship upon the inhabitants of defendant
municipality, the court's order denying the
injunctive relief but providing that the
judgment should not prevent the bringing
of another suit for the same relief upon
a change in the fundamental conditions,
will be upheld on appeal. Smithfield v. Ra-
leigh, 207 N. C. 597, 178 S. E. 114 (1935).
And Surrounding Facts Are to Be Con-
sidered.-The words "may be enjoined"
as used in this section, clearly demonstrate


that surrounding facts and circumstances
must be considered in entering a peremp-
tory order of injunctive relief. Smithfield
v. Raleigh, 207 N. C. 597, 178 S. E. 114
(1935).
Proof of Injurious Effect Unnecessary.
-An injunction will issue under this sec-
tion against emptying sewage into a river,
without proof of any injurious effect on
plaintiff's water supply. Durham v. Eno
Cotton Mills, 144 N. C. 705, 57 S. E. 465
(1907).
No Right by Prescription Acquired.-
The unlawful emptying of untreated sew-
age into a stream without hindrance or
question on the part of the health authori-
ties or others, cannot confer upon a town
the right to continue emptying therein
contrary to the express provisions of the
statutes, or acquire for it a prescriptive
right as against the public, however long
the same may have continued; nor can the
town acquire a vested right therein to de-
feat the enforcement of the provisions of
the statute subsequently passed. North
Carolina State Board v. Commissioners,
173 N. C. 250, 91 S. E. 1019 (1917).
Nor can title be lost to the public by
non-user, unless by legislative enactment.
Shelby v. Cleveland Mill, etc., Co., 155 N.
C. 196, 71 S. E. 218 (1911).
No Special Treatment for Sewage Pre-
scribed. This section does not require
that an arbitrary or fixed method of treat-
ing sewage before emptying into a stream,
etc., should be established in advance, but
that the defendant confer with the State
Board of Health and obtain and follow the
reasonable requirements prescribed for the
conditions presented. North Carolina State
Board v. Commissioners, 173 N. C. 250,
91 S. E. 1019 (1917).
Not Confined to Watershed Distance.-
This section is not confined to the water-
shed of 15 miles above the intake, but ex-
tends beyond 15 miles from the intake of
any stream from which water is taken to
be supplied to the public for drinking
purposes. Durham v. Eno Cotton Mills,
141 N. C. 615, 54 S. E. 453 (1906). In
case of menace to a lower town seventy-
five miles below the place where the
sewer empties, an injunction will be
granted. North Carolina State Board v.
Commissioners, 173 N. C. 250, 91 S. E.
1019 (1917).


130-166. Sewage disposal on watersheds.-All schools, hamlets,
villages, towns, or industrial settlements which are not provided with a sewer
system, and which are now located or may be hereafter located on the watershed
of any public water supply shall maintain and provide a reasonable system ap-
proved by the State Board of Health for collecting and disposing of all accumu-


130-166


130-166





WATER AND SEWER SANITATION


lations of human excrement within their respective jurisdiction or control. (1903,
c. 159, s. 14; Rev., ss. 3052, 3860; 1907, c. 585; 1911, c. 62, s. 35; C. S., s. 7127;
1957, c. 1357, s. 1.)
When Injunction Granted.-An injunc- existed as to render the water unfit for the
tion will not be granted under this section usage to which it was applied. Durham
except when it is shown that there are v. Eno Cotton Mills, 144 N. C. 705, 57 S.
special damages, or that such conditions E. 465 (1907).


Chapter 143.

State Departments, Institutions, and Commissions.


Article 21.
Department of Water and Air Resources.
Part 1. Organization and Powers Gener-
ally; Control of Pollution.
Sec.
143-211. Declaration of public policy.
143-212. Department of Water and Air
Resources created.
143-213. Definitions.
143-214. Board of Water and Air Re-
sources.
143-214.1. Water; water quality standards
and classifications; duties of
Board.
143-215. Air quality standards and classifi-
cations.
143-215.1. Control of new sources of air
and water pollution; permits
required.
143-215.2. Abatement of existing pollu-
tion; required compliance
with special orders.
143-215.3. General powers of Board; aux-
iliary powers.
143-215.4. General provisions as to proce-
dure; seal.
143-215.5. Judicial review.
143-215.6. Violations and penalties; acts
which constitute violations.
143-215.7. Effect on laws applicable to
public water supplies and the
sanitary disposal of sewage.
143-215.8. Injunctive relief.
143-215.9. Restrictions on authority of
the Board.
143-215.10. Transfer of all powers and du-
ties of Department of Water
Resources, including person-
nel and records of the Board;
title of article.
Part 2. Regulation of Use of Water Re-
sources.
143-215.11. Short title.
143-215.12. Declaration of purpose.
143-215.13. Declaration of capacity use
areas.
143-215.14. Regulations within capacity use
areas; scope and procedures.


Sec.
143-215.15. Permits for water use within
capacity use areas proce-
dures.
143-215.16. Permits for water use within
capacity use areas dura-
tion, transfer, reporting,
measurement, p r e s e n t use,
fees and penalties.
143-215.17. Violations.
143-215.18. Map or description of bound-
aries of capacity use areas.
143-215.19. Rights of investigation, entry,
access and inspection.
143-215.20. Rules and regulations.
143-215.21. Definitions.
143-215.22. Law of riparian rights not
changed.
Part 3. Dam Safety Law.
143-215.23. Short title.
143-215.24. Declaration of purpose.
143-215.25. Definitions.
143-215.26. Construction of dams.
143-215.27. Repair, alteration, or removal
of dam.
143-215.28. Action by Board upon applica-
tions.
143-215.29. Supervision by qualified engi-
neers; reports and modifica-
tion during work.
143-215.30. Notice of completion; certifi-
cation of final approval.
143-215.31. Supervision over maintenance
and operation of dams.
143-215.32. Inspection of dams.
143-215.33. Judicial review.
143-215.34. Investigations by Department;
r u I e s and regulations; em-
ployment of consultants.
143-215.35. Liability for damages.
143-215.36. Violations; penalties.
143-215.37. Rights of investigation, entry,
access and inspection.
Article 33A.
Rules of Evidence in Administrative Pro-
ceedings before State Agencies.
143-317. Definitions.
143-318. Rules of evidence official notice.


130-166


130-166






WATER AND AIR RESOURCES


Article 38.
Department of Water Resources.
Sec.
143-348, 143-349. [Repealed.]
143-350. Definitions.
143-351. [Repealed.]
143-352. Purpose of article.
143-353. [Repealed.]
143-354. Ordinary powers and duties of the
Board.
143-355. Transfer of certain powers, du-
ties, functions and responsibili-
ties of the Department of Con-
servation and Development and
of the Director of said Depart-
ment.
143-356. Continuation of Stream Sanita-
tion Committee, Division of
Water Pollution Control and Di-
rector of Division within De-
partment of Water Resources.
143-357. Transfer of property, records, and
appropriations.


Sec.
143-358. Cooperation of State officials and
agencies.
143-359. Biennial reports of Board of
Water Resources.
Article 43.
North Carolina Seashore Commission.
143-384. Commission created; members;
chairman.
143-385. Appointment and terms; vacan-
cies.
143-386. Vice-chairman; secretary; meet-
ings; rules, regulations and by-
laws; quorum.
143-387. Ex officio members.
143-388. Powers and duties.
143-389. Reports; recommendations and
suggestions.
143-390. Expenses and per diem.
143-391. Board of Water Resources to pro-
vide staff assistance and facili-
ties.


ARTICLE 21.
Department of Water and Air Resources.
Part 1. Organization and Powers Generally; Control of Pollution.
143-211. Declaration of public policy.-It is hereby declared to be the
public policy of this State to provide for the conservation of its water and air
resources. Furthermore, it is the intent of the General Assembly, within the
context of this article, to achieve and to maintain for the citizens of the State a
total environment of superior quality. Recognizing that the water and air re-
sources of the State belong to the people, the General Assembly affirms the State's
ultimate responsibility for the preservation and development of these resources
in the best interests of all its citizens and declares the prudent utilization of these
resources to be essential to the general welfare. It is the purpose of this article to
create an agency which shall administer a program of water and air pollution
control and water resource management. It is the intent of the General Assembly,
through the duties and powers defined herein, to confer such authority upon the
Board of Water and Air Resources as shall be necessary to administer a complete
program of water and air conservation, pollution abatement and control and to
achieve a coordinated effort of pollution abatement and control with other juris-
dictions. Standards of water and air purity shall be designed to protect human
health, to prevent injury to plant and animal life, to prevent damage to public and
private property, to insure the continued enjoyment of the natural attractions of
the State, to encourage the expansion of employment opportunities, to provide a
permanent foundation for healthy industrial development and to secure for the
people of North Carolina, now and in the future, the beneficial uses of these great
natural resources. (1951, c. 606; 1967, c. 892, s. 1.)
Revision of Article.-Session Laws 1967, sists of 143-211 to 143-215.10, and has
c. 892, rewrote article 21 of chapter 143, been codified as Part 1 of this article. Ses-
which was formerly captioned "State sion Laws 1967, c. 933, has been codified
Stream Sanitation and Conservation" and as Part 2, in accordance with s. 13 of that
consisted of 143-211 to 143-215.7. Arti- act, which directed that it be incorporated
cle 21, as contained in the 1967 act, con- in this article.
143-212. Department of Water and Air Resources created.-There
is hereby created the Department of Water and Air Resources. (1959, c. 779, s. 1;
1967, c. 892, s. 1.)


143-212


143-211






DEPARTMENT OF WATER AND AIR RESOURCES


143-213. Definitions.-Unless the context otherwise requires, the follow-
ing terms as used in this part are defined as follows:
(1) The term "air cleaning device" means any method, process or equipment
which removes, reduces, or renders less noxious air contaminants dis-
charged into the atmosphere.
(2) The term "air contaminant" means particulate matter, dust, fumes, gas,
mist, smoke, or vapor or any combination thereof.
(3) The term "air contamination" means the presence in the outdoor atmos-
phere of one or more air contaminants which contribute to a condition
of air pollution.
(4) The term "air contamination source" means any source at, from, or by
reason of which there is emitted into the atmosphere any air con-
taminant.
(5) The term "air pollution" means the presence in the outdoor atmosphere
of one or more air contaminants in such quantities and for such dura-
tion as to be injurious or detrimental to health or human safety, animal
or plant life, or property.
(6) The term "area of the State" means any municipality or county or portion
thereof or other substantial geographical area of the State as may be
designated by the Board.
(7) "Board" means the Board of Water and Air Resources created under
the provisions of this article.
(8) "Department" means the Department of Water and Air Resources to be
governed by a Board of Water and Air Resources as created in this
article.
(9) Whenever reference is made in this article to the "discharge of waste," it
shall be interpreted to include the discharge of waste into any unified
sewerage system or arrangement for sewage disposal, which system
or arrangement in turn discharges the waste into the waters of the State.
(10) The term "disposal system" means a system for disposing of sewage,
industrial waste or other waste, and including sewer systems and
treatment works.
(11) The term "effective date" means the date, as established pursuant to the
statutory powers of the Board and announced by official regulations of
the Board after which the statutory provisions designated by the Board
shall become applicable and enforceable, with respect to persons within
one or more watersheds, the State as a whole or one or more "areas of
the State" as designated by the Board.
(12) The term "emission" means a release into the outdoor atmosphere of
air contaminants.
(13) The term "outlet" means the terminus of a sewer system, or the point
of emergence of any sewage, industrial waste or other waste or the
effluent therefrom, into the waters of the State.
(14) "Person" shall mean any and all persons, including individuals, firms,
partnerships, associations, public or private institutions, municipalities
or political subdivisions, governmental agencies, or private or public
corporations organized or existing under the laws of this State or any
other state or country.
(15) The term "sewer system" means pipelines or conduits, pumping stations,
and force mains, and all other construction, devices, and appliances
appurtenant thereto, used for conducting sewage, industrial waste or
other wastes to a point of ultimate disposal.
(16) The term "standard" or "standards" means such measure or measures
of the quality of water and air as are established by the Board pur-
suant to 143-214.1 and 143-215.
(17) The term "treatment works" means any plant, disposal field, lagoon,
pumping station, constructed drainage ditch or surface water intercept-
37


143-213


143-213






WATER AND AIR RESOURCES


ing ditch, incinerator, area devoted to sanitary land fills, or other
works not specifically mentioned herein, installed for the purpose of
treating, neutralizing, stabilizing or disposing of sewage, industrial
waste or other waste.
(18) "Waste" shall mean and include the following:
a. "Sewage," which shall mean water-carried human waste dis-
charged, transmitted, and collected from residences, buildings,
industrial establishments, or other places into a unified sewerage
system or an arrangement for sewage disposal or a group of
such sewerage arrangements or systems, together with such
ground, surface, storm, or other water as may be present.
b. "Industrial waste" shall mean any liquid, solid, gaseous, or other
waste substance or a combination thereof resulting from any
process of industry, manufacture, trade or business, or from the
development of any natural resource.
c. "Other waste" means sawdust, shavings, lime, refuse, offal, oil,
tar chemicals, and all other substances, except industrial waste
and sewage, which may be discharged into or placed in such
proximity to the water that drainage therefrom may reach the
water.
(19) The term "water pollution" means a condition of any waters (as deter-
mined by standardized tests under conditions and procedures to be
prescribed by official regulations to be issued under the authority of
this article) which is in contravention to the standards established and
applied to such waters as set forth in G.S. 143-214.1.
(20) "Waters" shall mean any stream, river, brook, swamp, lake, sound, tidal
estuary, bay, creek, reservoir, waterway or any other body or accumula-
tion of water, surface or underground, public or private, natural or
artificial, which is contained within, flows through, or borders upon this
State or any portion thereof, including those portions of the Atlantic
Ocean over which this State has jurisdiction.
(21) The term "watershed" means a natural area of drainage, including all
tributaries contributing to the supply of at least one major waterway
within the State, the specific limits of each separate watershed to be
designated by the Board for all statutory purposes and to be defined
by the Board in its official regulations. (1951, c. 606; 1957, c. 1275, s.
1; 1959, c. 779, s. 8; 1967, c. 892, s. 1.)
143-214. Board of Water and Air Resources.-(a) Organization.-
There is hereby created the North Carolina Board of Water and Air Resources,
hereinafter referred to as "Board," which shall be charged with the duty of ad-
ministering this article. The Board shall consist of 13 members. The first appoint-
ments to membership on said Board shall consist of 11 selected from the member-
ship of the State Stream Sanitation Committee and the membership of the Board
of Water Resources. The two additional members shall be one licensed physician
and one person, who shall, at the time of appointment, be actively connected with
either the State Board of Health or a local health department. Any public official
appointed to the Board shall serve ex officio. All successors to membership on the
Board after the original appointments shall be made as follows: Two who shall,
at the time of appointment, be actively connected with and have had production
experience in the field of agriculture; two who shall, at the time of appointment, be
actively connected with industrial production and have had experience in the field
of industrial water supply and pollution control; two who shall, at the time of
appointment, be actively connected with and have had practical experience in water
supply and pollution control problems of municipal government: one who shall, at
the time of appointment, be actively connected with and have had experience in
water or air management problems of county government; one who shall, at the


143-214


143-214





DEPARTMENT OF WATER AND AIR RESOURCES


time of appointment, be actively connected with and have had experience in the
fish and wildlife activities of the State; one who shall, at the time of appointment,
be actively connected with a public health department and have had experience in
water and air pollution control activities; one licensed physician; and three
members appointed from the public at large, one of whom shall, at the time of his
appointment, be actively connected with and knowledgeable in the ground water
industry. In making the original appointments the members shall serve by staggered
terms of office so that four members shall serve for a term of six years, five mem-
bers shall serve for a term of four years, and four members shall serve for a term
of two years. All appointments to the Board shall be made by the Governor of
North Carolina, who shall, at the time of making the appointments, fix the term of
office of each member. The 13 members of the Board shall be appointed by the
Governor on or before July 1, 1967. Any public official appointed or to be appointed
shall serve ex officio. The Governor shall have the power to designate the member
of said Board who shall serve as chairman thereof for such period as the Governor
may fix. Upon the expiration of the respective terms of office of said members, the
successors of said members shall be appointed for a term of six years each there-
after, including the member acting as chairman of the Board. All members shall
hold their offices until their successors are appointed and qualified. Any member
appointed by the Governor to fill a vacancy occurring in any of the appointments
shall be appointed for the remainder of the term of the member causing the vacancy.
The Governor may at any time, remove any member of the Board for gross in-
efficiency, neglect of duty, malfeasance, misfeasance or nonfeasance in office. In
each instance appointments to fill vacancies in the membership of the Board shall
be a person or persons with experience in the same field as that of the member
or members being replaced.
(b) Divisions.-The Board may in its discretion divide the functions and duties
of the business and affairs under the jurisdiction of the Board into such divisions
or other units as the Board may think proper and may make each division or unit
responsible for the discharge of its distinctive functions and duties. These shall
include divisions of water and air pollution control, ground water, navigable
waterways and such other divisions as the Board deems proper, and the Board may
change the names of and revise the duties of its divisions or other units as it deems
appropriate. The Board may assign such administrative and other personnel to each
division as the Board may deem requisite and proper.
(c) Compensation.-The members of the Board shall receive the usual and
customary per diem allowed for the other members of boards and commissions of
the State and as fixed in the Biennial Appropriation Act, and, in addition, the mem-
bers of the Board shall receive subsistence and travel expenses according to the
prevailing State practices and as allowed and fixed by statute for such purposes,
which said travel expenses shall also be allowed while going to or from any place
of meeting or when on official business for the Board. The per diem payments
made to each member of the Board shall include necessary time spent in traveling
to and from their places of residence within the State to any place of meeting or
while traveling on official business for the Board.
(d) 1\eetings of Board.-The Board shall meet at least once every three months
and may hold special meetings at any time at the call of the chairman or any
three members of the Board. Both regular and special meetings shall be at places and
dates to be determined by the chairman, and all members shall be notified by the
chairman in writing of the time and place of regular and special meetings at least
seven days in advance of such meetings, unless otherwise waived. Seven members
of the Board shall constitute a quorum.
(e) Administration.-The Board shall have full power and authority to ad-
minister this article and such other provisions of law as may be assigned to it,
including the power and authority to adopt, amend, or rescind rules and regula-
tions, to employ such persons, make such expenditures, require such reports, make
such investigations, and take such other action as it deems necessary or suitable in


143-214


143-214





143-214 WATER AND AIR RESOURCES 143-214

the administration of its statutory authority and responsibilities. The Board shall
determine its own internal organization and methods of procedure and shall have
an official seal which shall be judicially noticed. Subject to other provisions of this
article, which deal with the appointment of the Director and an assistant director,
the Board is authorized in accordance with the provisions of the Personnel Act to
appoint, fix the compensation, and prescribe the duties and powers of all officers,
agents, auditors, accountants, experts and any and all other persons that may be
necessary in order to perform the duties required by the Board in the administration
of its statutory responsibilities. The Board may delegate to any officer, agent or
employee so appointed by the Board such power and authority as it deems reason-
able and proper for the effective administration of its statutory responsibilities, and
may, in its discretion, bond any person handling moneys or signing checks here-
under. The Board may appoint subdivisions or committees from its membership,
the number of members on said subdivisions or committees being fixed by the
Board, for the purpose of holding hearings and reporting same to the Board for
decision, for the purpose of making investigations, for the purpose of transacting
such business and carrying out such policies as the Board shall fix and direct.
(f) Director.-The Board, with the approval of the Governor, shall appoint a
full-time Director, who shall be a well qualified engineer, experienced and knowl-
edgeable in the fields of water and air resource management. The Director shall be
the administrative officer of the Board and shall perform in the name of the Board
such functions and duties of the Board as shall be delegated to him by formal
resolution. The Director shall be paid such salary as shall be fixed by the Governor,
with the approval of the Advisory Budget Commission and shall serve at the
pleasure of the Board. The Director shall attend all meetings, but without the power
of voting, shall keep or cause to be kept an accurate and complete record of all
meetings, hearings, correspondence, laboratory studies, technical work, and shall
make these records available for public inspection at all reasonable times. The
Director shall direct the work of the personnel employed by the Board and perform
such other duties as the Board may from time to time direct.
(g) Personnel and Facilities of Board.-The Board may employ such clerical,
technical and professional personnel with such qualifications as the Board may
prescribe, in accordance with the State Personnel Regulations and Budgetary
Laws, and is hereby authorized to pay such personnel from any funds made avail-
able to it through grants and appropriations made to the Board or from any
appropriations made to any other agency of the State for the benefit of the Board.
The Board may, with the approval of the Governor, employ such consultants as it
deems necessary and may compensate same for services received. The Attorney
General shall act as attorney for the Board, and shall initiate actions in the name of,
and at the request of, the Board, and shall represent the Board in hearing of any
appeal from or other review of any order of the Board.
(h) Acceptance and Administration of Federal or Private Funds.-The Board
shall have power and authority to accept, receive and administer any funds or
financial assistance given, granted or provided under any federal act or acts or from
any federal agency, including funds from foundations or private sources, and to
comply with all conditions and requirements necessary for the receipt, acceptance
and use of said funds to the extent not inconsistent with the laws of this State
and the rules and regulations thereunder pertaining to water and air resources. In
the administration of either private or federal funds, the Board shall have authority
to formulate plans and projects for federal approval or for the approval of founda-
tions and to enter into such contracts and agreements as may be necessary for
such purposes or to enter into joint agreements with any other agency or division
of government for such purposes and to furnish such information as may be re-
quested for any project or program related to or conducted pursuant to such plans
and contracts. Such funds received by the Board pursuant to this provision shall be
deposited in the State treasury to the account of the Board and shall remain in
such account until used by the board.






143-214.1 DEPARTMENT OF WATER AND AIR RESOURCES


(i) Assistant Director.-The Board, with the approval of the Governor, shall
appoint an assistant director who shall be a registered engineer in the State of
North Carolina. He shall be well qualified and knowledgeable in the principles of
water and air pollution control. The assistant director appointed under this pro-
vision shall be paid a salary fixed by the Governor and approved by the Advisory
Budget Commission. The assistant director, under the general supervision of the
Director, shall carry out the administrative duties and policies with respect to the
water and air pollution control programs, shall direct the work of the Department
in the absence of the Director and shall perform such other duties as may be
delegated to him, and the duties of said assistant director shall be fixed by reso-
lution of the Board. The assistant director shall supervise the work of the employees
assigned to the water and air pollution control programs and shall have the
authority to review and approve all plans, specifications and reports as may be
required in connection with applications for permits and other documents of
approval authorized pursuant to the provisions of this article as same relate to the
water and air pollution control programs.
(j) Advisory Councils.-There is hereby authorized the establishment of a
Water Control Advisory Council and an Air Control Advisory Council, herein-
after referred to as the Advisory Councils. Each Council shall consist of nine
members appointed by the Governor. The membership of each Advisory Council
shall include one registered professional engineer knowledgeable in matters of water
or air pollution, depending upon which Council he serves on, as well as one repre-
sentative from municipal government, one representative from county government,
one representative of public health, two representatives from industry providing
they are from different industries, one representative of agriculture, one licensed
physician knowledgeable in the health aspects of water or air pollution depending
upon which Council he serves on and one practicing biologist knowledgeable in the
principles of water quality management. The assistant director shall serve as secre-
tary to the Advisory Councils. The Councils shall meet either separately or jointly
at the request of the chairman of the Board or any three members of the Board.
Such administrative services and moneys as may be made available to or for the
Advisory Councils shall be charges on the Board. Members of the Advisory
Councils shall serve at the pleasure of the Governor. The members shall serve
without compensation but shall receive regular State subsistence and travel ex-
penses during the performance of their duties. The Advisory Councils shall assist
the Board in the development of rules, regulations, and quality standards for water
and air as may be considered necessary to achieve the purposes of this article and
may consider other matters related to the purposes of this part, which may be
submitted to it by the Board. (1951, c. 606, 1953, c. 1295; 1957, c. 992; c, 1267,
s. 2; 1959, c. 779, ss. 1, 8; 1967, c. 892, s. 1.)

143-214.1. Water; water quality standards and classifications;
duties of Board.-(a) The Board is hereby directed and empowered, as rapidly
as possible within the limits of funds and facilities available to it, and subject to
the procedural requirements of this article:
(1) To develop and adopt, after proper study, a series of classifications and
the standards applicable to each such classification, which will be ap-
propriate for the purpose of classifying each of the waters of the State in
such a way as to promote the policy and purposes of this article most
effectively;
(2) To survey all the waters of the State and to separately identify all such
waters as the Board believes ought to be classified separately in order
to promote the policy and purposes of this article, omitting only such
waters, as in the opinion of the Board, are insufficiently important to
justify classification or control under this article; and


143-214.1





WATER AND AIR RESOURCES


(3) To assign to each identified water of the State such classification, from
the series adopted as specified above, as the Board deems proper in
order to promote the policy and purposes of this article most effectively.
(b) Criteria for Classification.-In developing and adopting classifications, and
the standards applicable to each, the Board shall recognize that a number of
different classifications should be provided for (with different standards applicable
to each) so as to give effect to the need for balancing conflicting considerations as
to usage and other variable factors; that different classifications with different
standards applicable thereto may frequently be appropriate for different segments
of the same water; and that each classification and the standards applicable there-
to should be adopted with primary reference to the best usage to be made of the
waters to which such classification will be assigned.
(c) Criteria for Standards.-In establishing the standards applicable to each
classification, the Board shall consider and the standards when finally adopted and
published shall state: The extent to which any physical, chemical, or biological
properties should be prescribed as essential to the contemplated best usage.
(d) Criteria for Assignment of Classifications.-In assigning to each identified
water the appropriate classifications (with its accompanying standards), the Board
shall consider, and the decision of the Board when finally adopted and published
shall contain its conclusions with respect to the following factors as related to such
identified waters:
(1) The size, depth, surface area covered, volume, direction and rate of flow,
stream gradient and temperature of the water;
(2) The character of the district bordering said water, including any peculiar
suitability such district may have or any dominant economic interest
or development which has become established in relation to or by reason
of any particular use of such water;
(3) The uses and extent thereof which have been made, are being made, or
may in the future be made, of such water for domestic consumption,
bathing, fish or wildlife and their culture, industrial consumption, trans-
portation, fire prevention, power generation, the disposal of sewage,
industrial wastes and other wastes, or any other uses.
(e) Proposed Adoption and Assignment of Classification.-Prior to the adoption
by the Board of the series of classifications and standards applicable thereto as
specified in subsection (a) (1) of this section, prior to the assignment by the Board
of any such classifications to any waters as specified in subsection (a) (3) of this
section, and prior to any modification of any of such actions previously taken by
the Board, the Board shall give notice of its proposed action and shall conduct one
or more public hearings with respect to any such proposed action in accordance
with the following requirements:
(1) Notice of any such hearing shall be given not less than 20 days before
the date of such hearing and shall state the date, time, and place of
hearing, the subject of the hearing, and the action which the Board
proposes to take. The notice shall either include details of such pro-
posed action, or where such proposed action, as in the case of proposed
assignments of classifications to identified waters, is too lengthy for
publication, as hereinafter provided for, the notice shall specify that
copies of such detailed proposed action can be obtained on request from
the office of the Board in sufficient quantity to satisfy the requests of all
interested persons.
(2) Any such notice shall be published at least once in one newspaper of
general circulation circulated in each county of the State in which the
water area affected is located, and a copy of such notice shall be mailed
to each person on the mailing list required to be kept by the Board
pursuant to the provisions of 143-215.4.


143-214.1


143-214.1





DEPARTMENT OF WATER AND AIR RESOURCES


(3) Any person who desires to be heard at any such public hearing shall give
notice thereof in writing to the Board on or before the first date set
for the hearing. The Board is authorized to set reasonable time limits
for the oral presentation of views by any one person at any such public
hearing. The Board shall permit anyone who so desires to file a written
argument or other statement with the Board in relation to any proposed
action of the Board any time within 30 days following the conclusion
of any public hearing or within any such additional time as the Board
may allow by notice given as prescribed in this section.
(f) Final Adoption and Assignment of Classification. Upon completion of
hearings and consideration of submitted evidence and arguments with respect to
any proposed action of the Board pursuant to this section, the Board shall adopt
its final action with respect thereto and shall publish such final action as part of its
official regulations. When final action has been adopted and is published with
respect to the assignment of classifications applicable to the identified waters of
any one or more watersheds within the State, the Board shall likewise publish as
part of its official regulations, the effective date for the application of the pro-
visions of 143-215.1 and 143-215.2 to persons within such watershed or water-
sheds.
(g) Board's Power to Modify or Revoke.-The Board is empowered to modify
or revoke from time to time any final action previously taken by it pursuant to the
provisions of this part; any such modification or revocation, however, to be subject
to the procedural requirements of this article. (1951, c. 606; 1957, c. 1275, s. 2;
1967, c. 892, s. 1.)
143-215. Air quality standards and classifications.-(a) The Board
is hereby directed and empowered, as rapidly as possible within the limits of funds
and facilities available to it, and subject to the procedural requirements of this
article:
(1) To prepare and develop, after proper study, a comprehensive plan or
plans for the prevention, abatement and control of air pollution in the
State or in any designated area of the State.
(2) To determine by means of field sampling and other studies, including the
examination of available data collected by any local, State or federal
agency or any person, the degree of air contamination and air pollution
in the State and the several areas of the State.
(3) To develop and adopt, after proper study, air quality standards appli-
cable to the State as a whole or to any designated area of the State as
the Board deems proper in order to promote the policies and purposes
of this article most effectively.
(4) To develop and adopt classifications for use in classifying air contaminant
sources, which in the judgment of the Board may cause or contribute
to air pollution, according to levels and types of emissions and other
characteristics which relate to air pollution and may require reporting
for any such class or classes. Such classifications may be for application
to the State as a whole or to any designated area of the State, and shall
be made with special reference to effects on health, economic and
social factors, and physical effects on property. Any person operating or
responsible for the operation of air contaminant sources of any class for
which the Board requires reporting shall make reports containing such
information as may be required by the Board concerning location, size,
and height of contaminant outlets, processes employed, fuels used, and
the nature and time periods or duration of emissions, and such other
information as is relevant to air pollution and available or reasonably
capable of being assembled.
(5) To develop and adopt such emission control standards as in the Judg-
ment of the Board may be necessary to prohibit, abate or control air


143-215


143-215





143-215.1 WATER AND AIR RESOURCES 143-215.1

pollution commensurate with established air quality standards. Such
standards may be applied uniformly to the State as a whole or to any
area of the State designated by the Board.
(b) Criteria for Standards.-In developing air quality and emission control
standards, the Board shall recognize varying local conditions and requirements
and may prescribe different standards for different areas, as may be necessary and
appropriate to facilitate accomplishment of the stated purposes of this article.
(c) Proposed Adoption of Standards and Classifications.-Prior to the adoption
by the Board of air quality standards, emission control standards and classifica-
tions for air contaminant sources, and prior to any modification of any such
actions previously taken, the Board shall give notice of its proposed action and shall
conduct one or more public hearings with respect to any such proposed action in
accordance with the procedure set forth in subsections (e) (1), (e) (2), and
(e) (3) of 143-214.1.
(d) Final Adoption of Air Quality Standards, Emission Control Standards and
Classifications for Air Contaminant Sources.-Upon completion of hearings and
consideration of submitted evidence and arguments concerning any proposed action
by the Board with respect to the adoption of air quality standards, emission control
standards and classifications for air contaminant sources, the Board shall adopt its
final action with respect thereto and shall publish such final action as a part of its
official regulations. When final action has been adopted and is published with
respect to the aforestated standards and classifications, the Board shall likewise
publish as a part of its official regulations, the effective date for the application of
the provisions of 143-215.1 and 143-215.2 to persons within the State as a whole
or within any designated area of the State.
(e) Board's Power to Modify or Revoke.-The Board is hereby empowered to
modify or revoke from time to time any final action previously taken by it pur-
suant to the provisions of this part, any such modification or revocation, however,
to be subject to the procedural requirements of this article. (1967, c. 892, s. 1.)
143-215.1. Control of new sources of air and water pollution; per-
mits required. -(a) Water.-After the effective date applicable to any watershed
established pursuant to 143-214.1, no person shall do any of the following things
or carry out any of the following activities until or unless such person shall have
applied for and shall have received from the Board a permit therefore and shall have
complied with such conditions, if any, as are prescribed by such permit:
(1) Make any new outlets into the waters of such watershed;
(2) Construct or operate any new sewer system, treatment works or disposal
system within such watershed;
(3) Alter, extend, or change the construction or the method of operation of
any existing sewer system, treatment works or disposal system within
such watershed;
(4) Increase the quantity (determined by such method of measurement as the
Board shall prescribe by its official regulations) of sewage, industrial
waste, or other waste discharged through any existing outlet or pro-
cessed in any existing treatment works or disposal system to an extent
which would adversely affect the condition of the receiving water
within such watershed in relation to any of the standards applicable to
such water, or to an extent beyond such minimum limits as the Board
may prescribe, by way of general exemption from the provisions of
this paragraph, by its official regulations;
(5) Change the nature of the sewage, industrial waste or other waste dis-
charged through any existing disposal system in any way which would
adversely affect the condition of the receiving water within such water-
shed in relation to any of the standards applicable to such water.
In connection with the above, no such permit shall be granted for the disposal
of wastes into waters classified as sources of public water supply, where the State






143-215.1 DEPARTMENT OF WATER AND AIR RESOURCES


Board of Health determines and advises the Board that such disposal is sufficiently
close to the intake works of a public water supply as to have an adverse effect
thereon, until the Board has referred the complete plans and specifications to the
State Board of Health and has received advice in writing that same are approved
in accordance with the provisions of G.S. 130-161. In any case where the Board
denies a permit, it shall state in writing the reason for such denial and shall also
state the Board's estimate of the changes in the applicant's proposed activities or
plans which will be required in order that the applicant may obtain a permit.
(b) Air.-After the effective date applicable to any air quality or emission con-
trol standards established pursuant to 143-215, no person shall do any of the
following things or carry out any of the following activities which would contravene
or be likely to contravene such standards until or unless such person shall have
applied for and shall have received from the Board a permit therefore and shall
have complied with such conditions, if any, as are prescribed by such permit:
(1) Establish or operate any new air contaminant source;
(2) Build, erect, use or operate any new equipment which may result in the
emission of air contaminants or which is likely to cause air pollution;
(3) Alter or change the construction or method of operation of any existing
equipment or process from which air contaminants are or may be
emitted;
(4) Enter into a contract for the construction and installation of any air
cleaning device, or allow or cause such device to be constructed, in-
stalled, or operated.
Any plant, facility, equipment or air cleaning device which on the effective date
of such control standards is under construction or being installed, or is the subject
of a contract for construction, installation or purchase, shall not be considered
within the meaning of subsection (b) to be a new air contaminant source, new
equipment or a new air cleaning device.
(c) Board's Power as to Permits.-The Board shall act upon all applications for
permits so as to effectuate the purpose of this section, by preventing, so far as
reasonably possible, any pollution or any increased pollution of the waters and
air of the State from any additional or enlarged sources.
The Board shall have the power:
(1) To grant a permit with such conditions attached as the Board believes
necessary to achieve the purposes of this section;
(2) To grant any temporary permit for such period of time as the Board
shall specify even though the action allowed by such permit may result
in pollution or increase pollution where conditions make such temporary
permit essential; and
(3) To modify or revoke any permit upon not less than 60 days' written
notice to any person affected.
No permit shall be denied and no condition shall be attached to the permit,
except when the Board finds such denial or such conditions necessary to effectuate
the purposes of this section.
(d) Procedure as to Application and Permits.-All applications for permits and
all permits issued by the Board, or decisions denying any applications for a permit,
shall be in writing. The Board shall act on all applications for permits as rapidly as
possible. The Board shall have power to request such information from an applicant
and to conduct such inquiry or investigation as it may deem necessary prior to
acting on any application for a permit. Failure of the Board to take action on an
application for a permit within 90 days shall be treated as approval of such applica-
tion. The Board shall adopt such forms and rules as it deems necessary, to be
published as part of its rules of procedure, with respect to the application for the
grant or denial of permits pursuant to this section. Such rules may require the
submission of plans and specifications and other information as the Board deems
necessary to the proper evaluation of the application for a permit.


143-215.1





WATER AND AIR RESOURCES


(e) Hearings and Appeals.-Any person whose application for a permit is
denied, or is granted subject to conditions which are unacceptable to such person,
or whose permit is modified or revoked, shall have the right to a hearing before the
Board upon making demand therefore within 30 days following the giving of notice
by the Board as to its decision on such application. Unless such a demand for a
hearing is made, the decision of the Board on the application shall be final and
binding. If demand for a hearing is made, the procedure with respect thereto and
with respect to all further proceedings shall be as specified in 143-215.4 and in
any applicable rules of procedure of the Board. (1951, c. 606; 1955, c. 1131, s. 1;
1959, c. 779, s. 8; 1967, c. 892, s. 1.)
143-215.2. Abatement of existing pollution; required compliance
with special orders.-(a) After the effective date applicable to any watershed,
or established for any air quality standards or emission control standards, no per-
son shall discharge any sewage, industrial waste, or other waste into the waters
of such watershed or any air contaminants into the outdoor atmosphere of the
State of any designated area thereof in violation of, or except upon compliance with
the terms of, any special order, or other appropriate instrument, issued by the
Board to such person in accordance with the procedure specified by this article.
(b) Board's Powers as to Special Orders.-The Board is hereby empowered,
after the effective date applicable to any watershed, or established for any air
quality standards or emission control standards, to issue (and from time to time
to modify or revoke) a special order, or other appropriate instrument, to any
person whom it finds responsible for causing or contributing to any pollution of
water within such watershed or pollution of the air within the area for which
standards have been established. Such an order or instrument may direct such
person to take, or refrain from taking such action, or to achieve such results,
within a period of time specified by such special order, as the Board deems neces-
sary and feasible in order to alleviate or eliminate such pollution. No such special
order shall be issued against a person, or, if issued, the time for compliance
therewith by such person shall be extended to the extent necessary, where the
Board concludes, after investigation, or where it is demonstrated after a hear-
ing, that it is impossible or, for the time being, not feasible for such person to cor-
rect or eliminate the activities causing or contributing to any such pollution. Such
a situation shall be deemed to exist where no adequate or practical method of
disposal, control, or treatment is known for the particular waste or air contam-
inant for which such person is responsible, or where the cost of any such known
method of disposal, control or treatment is unduly burdensome in comparison with
the pollution abatement results which can be achieved, or where a known method
of disposal, abatement, or treatment cannot be adopted because of financial inability
(due to statutory restriction on borrowing power or otherwise), or where there
is reason to believe that diligent research and experimentation is being carried on
to such an extent as to justify postponement of the adoption of relatively inef-
ficient known methods of disposal, abatement, or treatment until further oppor-
tunity is given for the discovery of more effective methods. The burden of proof
as to any of such conditions or any other conditions alleged to exist as a reason for
the nonissuance of a special order or for extension of the time of compliance there-
with shall be upon the person alleging such conditions.
(c) Procedure as to Special Orders.-No special order shall be issued by the
Board (unless issued upon the consent of a person affected thereby) except after
a hearing in accordance with the procedural requirements specified in 143-215.4
and in any applicable rules of procedure of the Board. Any special order shall be
based on and shall set forth the findings of fact resulting from evidence presented
at such hearing and shall specify the time within which the person against whom
such order is issued shall achieve the results required by the special order.
(d) Appeals.-Any person against whom a special order is issued shall have
the right to appeal in accordance with the provisions of section 143-215.5. Unless


143-215.2


143-215.2





143-215.2 DEPARTMENT OF WATER AND AIR RESOURCES


such appeal is taken within the prescribed time limit, the special order of the Board
shall be final and binding.
(e) Encouragement of Voluntary Action.-The powers conferred by this sec-
tion are granted for the purpose of enabling the Board to carry out a state-wide
program of water and air pollution abatement to the end that ultimately the pur-
poses of this article will be achieved. It is the intent of this section, however, that
the Board should seek to obtain the cooperative effort of all persons contributing
to each situation involving water or air pollution in remedying such situation, and
that the powers granted by this section shall be exercised only when the objective
of this section cannot be otherwise achieved within a reasonable time.
(f) Equality of Enforcement Action.-It is the intent of this article that a com-
prehensive all-inclusive effort be made to accomplish the purpose of this article
and to that end it is specifically provided that whenever more than one person is
found to be responsible for a condition involving pollution of the air of any area
of the State or water of any segment of any particular water as identified and
classified under 143-214.1 and 143-215 that the Board shall endeavor to ob-
tain the cooperative effort of all such persons and that if this cannot be ac-
complished and the Board deems it necessary to take enforcement action to cor-
rect such pollution, by invoking the power granted by this article, such action shall
be taken against all persons who share responsibility for such condition, to the
extent that such persons have not voluntarily undertaken satisfactory remedial
measures or have not agreed, by consenting to the issuance of special orders pur-
suant to this section to undertake such measures.
When an order of the Board to abate a water or air pollution problem is served
upon a municipality, upon a metropolitan sewerage district, or upon a sanitary
district, the governing board of such municipality, metropolitan sewerage dis-
trict, or sanitary district shall, unless said order be reversed on appeal, proceed to
provide funds, using any or all means necessary and available therefore by law, by
issuance of bonds secured by the full faith and credit of such municipality or dis-
trict or by issuance of revenue bonds or otherwise, for financing the cost of all
things necessary for full compliance with said order and shall thereby comply
with said order: Provided, nothing herein shall be construed to supersede or
modify the provisions of the Local Government Act or of the Revenue Bond Act
of 1938 with respect to approval or disapproval of bonds by the Local Govern-
ment Commission and to the sale of bonds by said Commission.
(g) Voluntary Projects; Applications for Certificate of Approval; Installation
of Treatment Works or Air Cleaning Devices and Approval Thereof.-Prior to
the effective date applicable to any watershed or established for any air quality
standards or emission control standards, any person who is discharging or who pro-
poses to discharge sewage, industrial waste, or other waste into any waters of the
State or who is discharging or who proposes to discharge any air contaminants into
the air of the State may submit to the Board proposed plans for the installation of
treatment works with respect to such sewage, industrial waste or other waste, or for
the installation of air cleaning devices, with respect to such air cantaminants and ap-
ply to the Board for approval thereof. Such applications shall be in such form as the
Board may prescribe in its rules of procedure, shall describe in precise detail the na-
ture and volume of the sewage, industrial waste, other waste, or air contaminant
which the applicant discharges or proposes to discharge, and shall contain or be sup-
plemented by any information or plans and specifications whatsoever which the
Board may request. The applicant may submit the opinion of any independent expert
as to the probable effectiveness and results of such treatment works or air cleaning
devices and the Board may request that the opinion of experts or additional ex-
perts be obtained in any case where it considers the same necessary, the expense
in connection therewith to be borne by the applicant. Such an application may be
filed by any person irrespective of whether any proceedings involving such person
have been taken or are pending under any other provision of this article.


143-215.2






WATER AND AIR RESOURCES


(h) Voluntary Projects, Conditions for Issuance of Certificate. The Board
shall make a thorough investigation of any application filed pursuant to this section
before acting thereon, and may require the applicant to submit any statements in
support of such application under oath. The Board shall not issue a certificate of
approval to any applicant, unless it finds that the proposed treatment works or air
cleaning devices, if installed and operated in accordance with the plans submitted
to the Board:
(1) Will provide an effective method of preventing or abating actual or po-
tential pollution of the waters or air into which the applicant is dis-
charging or proposes to discharge any air contaminants or sewage, in-
dustrial waste, or other waste; and
(2) Will require such expenditure by the applicant, in relation to the air
cleaning or waste treatment problem to be remedied and the size and
nature of the applicant's activities resulting in such problem, that it
is fair to give the applicant reasonable protection against being re-
quired by law, at some later date, to make further capital expenditures
in connection with the same air cleaning or waste treatment problem.
(i) Voluntary Projects, Effect of Certificate of Approval.-If the Board ap-
proves the proposed air cleaning devices or waste treatment works, with any mod-
ifications it may recommend, it shall have the power to issue to the applicant a
certificate of approval which shall have the following effect and be subject to the
following limitations:
(1) Such certificate shall give the person to whom it is issued binding as-
surance that, for the period specified in the certificate and so long as
such person complies with all the terms of the certificate, he will not
be required to take or refrain from any further action nor be required
to achieve any further results under the terms of this or any other
State law relating to the control of water or air pollution, for the pur-
pose of alleviating or eliminating any pollution or alleged pollution re-
sulting from the sewage, industrial waste, other waste, or air con-
taminants, which such person is discharging into any water or the at-
mosphere.
(2) Such certificate shall be effective from the date of its issuance for such
period of time as the Board deems fair and reasonable in the light of
all the circumstances.
(3) Such certificate shall provide that it shall become void unless the appli-
cant completes the proposed air cleaning devices or waste treatment
works within a time limit specified in such certificate, and unless the pro-
posed air cleaning devices or waste treatment works are constructed and
at all times operated in accordance with the plans and specifications ap-
proved by the Board pursuant to this section.
(4) Such certificate shall be effective only with respect to the nature and
volume of air contaminants or sewage, industrial waste or other waste
described in the application or in the certificate itself after treatment
by the proposed treatment works or air cleaning devices.
(5) Such certificate shall inure to the benefit of any successors or assigns
of the applicant subject to the same conditions as are applicable to the
applicant.
(6) Such certificate may impose any other limitations on its effectiveness as
the Board may deem necessary or appropriate.
(j) Voluntary Projects, Procedure.-The Board by rules of procedure, not
inconsistent with this article, may specify any further rules applicable to the grant-
ing of certificates of approval pursuant to this section. Any action by the Board
on an application for a certificate of approval is a matter of discretion and conse-
quently there shall be no right to a hearing nor to an appeal with respect to any
refusal of the Board to grant any certificate of approval, or to the terms thereof.
48


143-215.2


143-215.2




143-215.3 DEPARTMENT OF WATER AND AIR RESOURCES


The Board shall have power to entertain and act on applications for modification
of any certificate of approval. The Board shall have no power to revoke or modify
a certificate of approval which has been issued, except by agreement, or except
where the terms of such certificate have been violated or have not been fulfilled.
(k) Nonvoluntary Projects, Effect of Compliance.-Any person who installs a
treatment works or an air cleaning device for the purpose of alleviating or elim-
inating water or air pollution in compliance with the terms of, or as a result of
conditions specified in, a permit issued pursuant to 143-215.1 or a special order
issued pursuant to this section or a final decision of the Board or a court rendered
decision pursuant to either of said sections, shall not be required to take or re-
frain from any further action nor be required to achieve any further results un-
der the terms of this or any other State law relating to the control of water or air
pollution, for a period to be fixed by the Board or court as it shall deem fair and
reasonable in the light of all the circumstances after the date when such special
order or decision or the conditions of such permit become finally effective, if:
(1) The treatment works or air cleaning devices result in the elimination
or alleviation of water or air pollution to the extent required by such
permit, special order or decision and complies with any other terms
thereof; and
(2) Such person complies with the terms and conditions of such permit,
special order or decision within the time limit, if any, specified there-
by or as the same may be extended, and thereafter remains in compli-
ance. (1951, c. 606; 1955, c. 1131, s. 2; 1967, c. 892, s. 1.)
Quoted in Scarborough v. Adams, 264
N.C. 631, 142 S.E.2d 608 (1965).
143-215.3. General powers of Board; auxiliary powers.-(a) In
addition to the specific powers prescribed elsewhere in this article, and for the pur-
pose of carrying out its duties, the Board shall have the power:
(1) To adopt from time to time and to modify and revoke official regulations
interpreting and applying the provisions of this article and rules of pro-
cedure establishing and amplifying the procedures to be followed in the
administration of this article: Provided, that no regulations and no
rules of procedure shall be effective nor enforceable until published
and filed as prescribed by 143-215.4;
(2) To conduct such investigations as it may reasonably deem necessary to
carry out its duties as prescribed by this article, and for this purpose
to enter at reasonable times upon any property, public or private, for
the purpose of investigating the condition of any waters and the
discharge therein of any sewage, industrial waste or other waste or
for the purpose of investigating the condition of the air, air pollution,
air contaminant sources, emissions or the installation and operation of
any air cleaning devices, and to require written statements or the
filing of reports under oath, with respect to pertinent questions re-
lating to the operation of any air cleaning device, sewer system, dis-
posal system or treatment works: Provided, that no person shall be
required to disclose any secret formula, processes, or methods used
in any manufacturing operation or any confidential information con-
cerning business activities carried on by him or under his supervi-
sion. No person shall refuse entry or access to any authorized repre-
sentative of the Board who requests entry for purposes of inspection,
and who presents appropriate credentials, nor shall any person ob-
struct, hamper or interfere with any such representative while in the
process of carrying out his official duties;
(3) To conduct public hearings in accordance with the procedures pre-
scribed by this article;


143-215.3





WATER AND AIR RESOURCES


(4) To delegate such of the powers of the Board as the Board deems neces-
sary to one or more of its members, to its director, assistant director,
or to any other qualified employee of the Board; provided, that the
provisions of any such delegation of power shall be set forth in the of-
ficial regulations of the Board; and provided further that the Board
shall not delegate to persons other than its own members and its
own qualified employees the power to conduct hearings with respect
to the classification of waters, the assignment of classifications, air
quality standards, air contaminant source classifications, emission con-
trol standards, or the issuance of any special order except in the case
of an emergency under subsection (a) (12) for the abatement of
existing water or air pollution. Any employee of the Board to whom a
delegation of power is made to conduct a hearing shall report the hear-
ing with its evidence and record to the Board for decision;
(5) To institute such actions in the superior court in the county in which
any defendant resides, or has his or its principal place of business,
as the Board may deem necessary for the enforcement of any of the
provisions of this article or of any official actions of the Board, in-
cluding proceedings to enforce subpoenas or for the punishment of
contempt of the Board;
(6) To agree upon or enter into any settlements or compromises of any ac-
tions and to prosecute any appeals or other proceedings.
(7) To investigate any killing of fish and wildlife which, in the opinion of
the Board, is of sufficient magnitude to justify investigation and is
known or believed to have resulted from the pollution of the waters or
air as defined in this article, and whenever any person, whether or not
he shall have been issued a certificate of approval, permit or other docu-
ment of approval authorized by this or any other State law, has negli-
gently, or carelessly or unlawfully, or wilfully and unlawfully, caused
pollution of the waters or air as defined in this article, in such quantity,
concentration or manner that fish or wildlife are killed as the result
thereof, the Board may recover, in the name of the State, damages
from such person. The measure of damages shall be the amount de-
termined by the Board and the North Carolina Wildlife Resources
Commission or the North Carolina Department of Conservation and
Development, whichever has jurisdiction over the fish or wildlife de-
stroyed, to be the replacement costs thereof plus the cost of all rea-
sonable and necessary investigations made or caused to be made by the
State in connection therewith. Upon receipt of the estimate of damages
caused, the Board shall notify the persons responsible for the destruc-
tion of the fish or wildlife in question and may effect such settlement
as it deems proper and reasonable, and if no settlement is reached
within a reasonable time, the Board shall bring a civil action to re-
cover such damages in the superior court in the county in which the
discharge took place. Upon such action being brought the superior
court shall have jurisdiction to hear and determine all issues or ques-
tions of law or fact, arising on the pleadings, including issues of lia-
bility and the amount of damages.
The State of North Carolina shall be deemed the owner of the fish or
wildlife killed and all actions for recovery shall be brought by the Board
on behalf of the State as the owner of the fish or wildlife. The fact that
the person or persons alleged to be responsible for the pollution
which killed the fish or wildlife holds or has held a certificate of ap-
proval, permit or other document of approval authorized by this ar-
ticle or any other law of the State shall not bar any such action.
The proceeds of any recovery had, less the cost of investigations, re-
50


143-215.3


143-215.3





143-215.3 DEPARTMENT OF WATER AND AIR RESOURCES


covered and retained or otherwise disbursed by the Board to the ap-
propriate investigating agencies, shall be paid to the appropriate State
agency to be used to replace, insofar as and as promptly as possible,
the fish and wildlife killed, or in cases where replacement is not practi-
cable, the proceeds shall be used in whatever manner the responsible
agency deems proper for improving the fish and wildlife habitat in
question. Any such funds received are hereby appropriated for these
designated purposes. Nothing in this paragraph shall be construed in
any way to limit or prevent any other action which is now authorized
by this article.
(8) To make a continuing study of the effects of the emission of air con-
taminants from motor vehicles on the quality of the outdoor atmos-
phere of the State and the several areas thereof, and make recommenda-
tions to the General Assembly and other appropriate public and private
bodies for the control of such air contaminants.
(9) Consult, upon request, with any person proposing to construct, install,
or otherwise acquire an air or water pollution source, air cleaning de-
vice or waste disposal system for the control of air contaminants or
waste discharges concerning the efficacy of such device or disposal
system, or the air or water pollution problem which may be related
to such source, device or disposal system; provided, however, that
nothing in any such consultation shall be construed to relieve any
person from compliance with this article, rules and regulations adopted
pursuant thereto, or any other provision of law.
(10) To encourage local units of government to handle air pollution prob-
lems within their respective jurisdictions and on a cooperative basis,
and to provide such local units technical and consultative assistance to
the maximum extent possible.
(11) Local Air Pollution Control Programs.
a. To review and have general oversight and supervision over all
existing or proposed local air pollution control programs and to
this end shall review and certify such programs as being ad-
equate to meet the requirements of this article and any appli-
cable standards and rules and regulations pursuant thereto. The
Board shall certify any local program which:
1. Provides by ordinance or local law for requirements com-
patible with those imposed by the provisions of this
article, and the standards and rules and regulations is-
sued pursuant thereto; provided, however, the Board up-
on request of a municipality or other local unit may
grant special permission for the governing body of such
unit to adopt a particular class of air contaminant reg-
ulations which would result in more effective air pollu-
tion control than applicable standards, rules, or regula-
tions promulgated by the Board;
2. Provides for the adequate enforcement of such require-
ments by appropriate administrative and judicial pro-
cess;
3. Provides for an adequate administrative organization,
staff, financial and other resources necessary to ef-
fectively and efficiently carry out its programs; and
4. Is approved by the Board as adequate to meet the re-
quirements of this article and any applicable rules and
regulations pursuant thereto.
b. No municipality, county, local board or commission or group of
municipalities and counties may establish and administer an


143-215.3




WATER AND AIR RESOURCES


air pollution control program unless such program meets the
requirements of subdivision (11) of subsection (a) of this
section and is so certified by the Board.
c. If the Board finds that the location, character or extent of
particular concentrations of population, air contaminant sources,
the geographic, topographic or meteorological considerations,
or any combinations thereof, are such as to make impracticable
the maintenance of appropriate levels of air quality without an
area-wide air pollution control program, the Board may de-
termine the boundaries within which such program is neces-
sary and require such area-wide program as the only acceptable
alternative to direct State administration.
d. 1. If the Board has reason to believe that a local air pollution
control program certified and in force pursuant to the
provisions of this section is inadequate to abate or control
air pollution in the jurisdiction to which such program
relates, or that such program is being administered in a
manner inconsistent with the requirements of this arti-
cle, the Board shall, upon due notice, conduct a hear-
ing on the matter.
2. If. after such hearing the Board determines that an exist-
ing local air pollution control program or one which has
been certified by the Board is inadequate to abate or
control air pollution in the municipality, county, or mu-
nicipalities or counties to which such program relates,
or that such program is not accomplishing the purposes
of this article, it shall set forth in its findings the cor-
rective measures necessary for continued certification
and shall specify a reasonable period of time, not to ex-
ceed one year, in which such measures must be taken
if certification is not to be rescinded.
3. If the municipality, county, local board or commission or
municipalities or counties fail to take such necessary cor-
rective action within the time specified, the Board shall
rescind any certification as may have been issued for
such program and shall administer within such munici-
ipality, county, or municipalities or counties all of the
regulatory provisions of this article. Such air pollution
control program shall supersede all municipal, county or
local laws, regulations, ordinances and requirements in
the affected jurisdiction.
4. If the Board finds that the control of a particular class of
air contaminant source because of its complexity or
magnitude is beyond the reasonable capability of the
local air pollution control authorities or may be more
efficiently and economically performed at the State level,
it may assume and retain jurisdiction over that class of
air contaminant source. Classification pursuant to this
paragraph may be either on the basis of the nature of the
sources involved or on the basis of their relationship to
the size of the communities in which they are located.
5. Any municipality or county in which the Board ad-
ministers its air pollution control program pursuant to
paragraph 3 of this subdivision may, with the approval
of the Board, establish or resume a municipal, county, or
52


143-215.3


143-215.3





DEPARTMENT OF WATER AND AIR RESOURCES


local air pollution control program which meets the re-
quirements for certification by the Board.
6. Nothing in this article shall be construed to supersede or
oust the jurisdiction of any local air pollution control
program in operation on June 22, 1967; provided that
within two years from such date any such program shall
meet all requirements of this article for certification by the
Board as an approved local air pollution control pro-
gram. Any certification required from the Board shall
be deemed granted unless the Board takes specific action
to the contrary.
7. Any municipality, county, local board or commission or
municipalities or counties or designated area of this State
for which a local air pollution control program is estab-
lished or proposed for establishment may make application
for, receive, administer and expend federal grant funds
for the control of air pollution or the development and ad-
ministration of programs related to air pollution control;
provided that any such application is first submitted to
and approved by the Board. The Board shall approve any
such application if it is consistent with this article and
other applicable requirements of law.
(12) To declare an emergency when it finds that a generalized condition ot
water or air pollution which is causing imminent danger to the health
or safety of the public. Regardless of any other provisions of law, if the
Department finds that such a condition of water or air pollution exists
and that it creates an emergency requiring immediate action to protect
the public health and safety or to protect fish and wildlife, the assistant
director, with the approval of the director and the concurrence of the
Governor, shall order persons causing or contributing to the water or
air pollution in question to reduce or discontinue immediately the
emission of air contaminants or the discharge of wastes. Immediately
after the issuance ot such order, the chairman of the Board shall fix a
place and time for a hearing before the Board to be held within 24
hours after issuance of such order, and within 24 hours after the
commencement of such hearing, and without adjournment thereof,
the Board shall either affirm, modify or set aside the order of the as-
sistant director.
In the absence of a generalized condition of air or water pollution
of the type referred to above, if the assistant director finds that the
emissions from one or more air contaminant sources or the discharge
of wastes from one or more sources of water pollution is causing im-
minent danger to human health and safety or to fish and wildlife, he
may with the approval of the director and the concurrence of the Gov-
ernor order the person or persons responsible for the operation or op-
erations in question to immediately reduce or discontinue the emis-
sions of air contaminants or the discharge of wastes or to take such
other measures as are, in his judgment, necessary, without regard to
any other provisions of this article. In such event, the requirements for
hearing and affirmance, modification or setting aside of such orders
set forth in the preceding paragraph of this provision shall apply.
Nothing in this subsection shall be construed to limit any power which the
Governor or any other officer may have to declare an emergency and act on the
basis of such declaration, if such power is conferred by statute or constitutional
provision, or inheres in the office.


143-215.3


143-215.3





WATER AND AIR RESOURCES


(b) Research Functions.-The Board shall have the power to conduct scientific
experiments, research, and investigations to discover economical and practical
corrective methods for air pollution and waste disposal problems. To this end,
the Board may cooperate with any public or private agency or agencies in the
conduct of such experiments, research, and investigations, and may, when funds
permit, establish research studies in any North Carolina educational institution,
with the consent of such institution. In addition, the Board shall have the power
to cooperate and enter into contracts with technical divisions of State agencies, in-
stitutions and with municipalities, industries, and other persons in the execution of
such surveys, studies, and research as it may deem necessary in fulfilling its func-
tions under this article. All State departments shall advise with and cooperate
with the Board on matters of mutual interest,
(c) Relation with the Federal Government.-The Board as official water and
air pollution control agency for the State is delegated to act in local administration
of all matters covered by any existing federal statutes and future legislation by
Congress relating to water and air quality control.
(d) Relations with Other States.-The Board may, with the approval of the
Governor, consult with qualified representatives of adjoining states relative to
the establishment of regulations for the protection of waters and air of mutual
interest, but the approval of the General Assembly shall be required to make any
regulations binding. (1951, c. 606; 1957, c. 1267, s. 3; 1959, c. 779, s. 8; 1963, c.
1086; 1967, c. 892, s. 1.)
Cross Reference. As to powers and Well Construction Act, see 87-83 to 87-
duties of Board under the North Carolina 96.
143-215.4. General provisions as to procedure; seal.-(a) Persons
Entitled to Notice, Mailing List.-In any proceeding pursuant to 143-215.1,
143-215.2, 143-215.3, the Board shall give notice with respect to all steps of the
proceeding only to each person directly affected by such proceeding who shall be
made a party thereto. In all proceedings pursuant to 143-214.1 and 143-215,
the Board shall give notice as provided by that section, and it shall also give notice
of all its official acts (such as the adoption of regulations or rules of procedure)
which have, or are intended to have, general application and effect, to all persons
on its mailing list on the date when such action is taken. It shall be the duty of the
Board to keep such a mailing list on which it shall record the name and address ot
each person who requests listing thereon, together with the date of receipt of such
request. Any person may, by written request to the Board, ask to be permanently
recorded on such mailing list.
(b) Publication and Codification of Board's Regulations and Rules.-All official
acts of the Board which have or are intended to have general application effect
shall be incorporated either in the Board's official regulations (applying and inter-
preting this article), or in its rules of procedure. All such regulations and rules
shall upon adoption thereof by the Board be printed (or otherwise duplicated),
and a duly certified copy thereof shall immediately be filed with the Secretary of
State. One copy of each such action shall at the same time be mailed to all persons
then on the mailing list, and additional copies shall at all times be kept at the office
of the Board in sufficient numbers to satisfy all reasonable requests therefore. The
Board shall codify its regulations and rules and from time to time shall revise and
bring up to date such codifications.
(c) Notices.-All notices which are required to be given by the Board or by
any party to a proceeding shall be given by registered or certified mail to all per-
sons entitled thereto, including the Board. The date of receipt for such registered
or certified mail shall be the date when such notice is deemed to have been given.
Notice by the Board may be given to any person upon whom a summons may be
served in accordance with the provisions of law covering civil actions in the su-
perior courts of this State. Any notice shall be sufficient if it reasonably sets forth


143-215.4


143-215.4






[ 143-215.4 DEPARTMENT OF WATER AND AIR RESOURCES 143-215.4

the action requested or demanded or gives information as to action taken. The
Board by its rules of procedure may prescribe other necessary practices and pro-
cedures with regard to the form, content and procedure as to any particular notices.
(d) Hearings.-The following provisions, together with any additional provi-
sions not inconsistent herewith which the Board may prescribe, shall be applicable
in connection with hearings pursuant to this article, except where other provisions
are applicable in connection with specific types of hearings:
(1) Any hearing held pursuant to 143-215.1 and 143-215.2 or 143-215.3,
except those held pursuant to subsection (a) (12) of 143-215.3,
whether called at the instance of the Board or of any person, shall be
held upon not less than 30 days' written notice given by the Board to
any person who is, or is entitled to be, a party to the proceedings with
respect to which such hearing is to be held, unless a shorter notice is
agreed upon by all such parties.
(2) All hearings shall be before the Board or its authorized agent or agents,
and the hearing shall be open to the public. The Board, or its autho-
rized agents, shall have the authority to administer oaths.
(3) A full and complete record of all proceedings at any hearing shall be
taken by a reporter appointed by the Board or by other method ap-
proved by the Attorney General. Any party to a proceeding shall be
entitled to a copy of such record upon the payment of the reasonable
cost thereof as determined by the Board.
(4) The Board shall follow generally the procedures applicable in civil ac-
tions in the superior court insofar as practicable, including rules and
procedures with regard to the taking and use of depositions, the mak-
ing and use of stipulations, and the entering into of agreed settlements
and consent orders.
(5) Subpoenas or subpoenas duces tecum issued by the Board, in connection
with any hearing, shall be directed to any officer authorized by law to
serve process, and the further procedures and rules of law applicable
with respect thereto shall be prescribed in connection with subpoenas
to the same extent as if issued by a court of record. In case of a refusal
to obey a notice of hearing or subpoena issued by the Board, application
may be made to the superior court of the appropriate county for en-
forcement thereof.
(6) The burden of proof at any hearing shall be upon the person or the
Board, as the case may be, at whose instance the hearing is being
held.
(7) No decision or order of the Board shall be made in any proceeding unless
the same is supported by competent, material and substantial evidence
upon consideration of the whole record.
(8) Following any hearing, the Board shall afford the parties thereto a rea-
sonable opportunity to submit within such time as prescribed by the
Board proposed findings of fact and conclusions of law and any brief
in connection therewith. The record in the proceeding shall show the
Board's ruling with respect to each such requested finding of fact and
conclusion of law.
(9) All orders and decisions of the Board shall set forth separately the
Board's findings of fact and conclusions of law and shall, wherever
necessary, cite the appropriate provision of law or other source of au-
thority on which any action or decision of the Board is based.
(10) As previously recited above, the Board shall have the authority to adopt
a seal which shall be the seal of said Board and which shall be judicially
noticed by the courts of the State. Any document, proceeding, order,
decree, special order, rule, regulation, rule of procedure or any other
official act or records of the Board or its minutes may be certified by




WATER AND AIR RESOURCES


the director or assistant director of the Department under his hand and
the seal of the Board and when so certified shall be received in evidence
in all actions or proceedings in the courts of the State without further
proof of the identity of the same if such records are competent, relevant
and material in any such action or proceeding. The Board shall have
the right to take judicial notice of all studies, reports, statistical data
or any other official reports or records of the federal government or of
any sister state and all such records, reports and data may be placed in
evidence by the Board or by any other person or interested party where
material, relevant and competent. (1951, c. 606; 1967, c. 892, s. 1.)
143-215.5. Judicial review.-Any person against whom any final order
or decision has been made except where no appeal is allowed as provided by
143-215.2 (j) shall have a right of appeal to the Superior Court of Wake County
or of the county where the order or decision is effective within 30 days after such
order or decision has become final. Upon such appeal the Board shall send a certi-
fied transcript of all testimony and exhibits introduced before the Board, the order
or decision, and the notice of appeal to the superior court. The matter on appeal
shall be heard and determined de novo on the transcript certified to the court and
any evidence or additional evidence as shall be competent under rules of evidence
then applicable to trials in the superior court without a jury upon any question of
fact; provided, the court shall allow any party to introduce evidence or additional
evidence upon any question of fact. At the conclusion of the hearing, the judge
shall make findings of fact and enter his decision thereto. Appeals from the judg-
ment and orders of the superior court shall lie to the Supreme Court. No bond
shall be required of the Board to the Supreme Court.
(1) Upon appeal filed by any party, the Board shall forthwith furnish each
party to the proceeding with a copy of the certified transcript and ex-
hibits filed with the Board. A reasonable charge shall be paid the Board
for said copies.
(2) Within 15 days after receipt of copy of certified transcript and exhibits,
any party may file with the court exceptions to the accuracy or omis-
sions of any evidence or exhibits included in or excluded from said
transcript. (1951, c. 606; 1967, c. 892, s. 1.)
143-215.6. Violations and penalties; acts which constitute viola-
tions.-(a) After the effective date applicable to any watershed or for the appli-
cation of any air quality standards or emission control standards it shall be a viola-
tion of this article for any person within such watershed; the State as a whole or
one or more areas of the State:
(1) To perform any of the acts set forth in 143-215.1 (a) or 143-215.1
(b) without first obtaining a permit as required by 143-215.1, or to
perform any such acts in disregard of the terms of any such permit.
(2) To fail to comply with the terms of any special order issued by the Board
to such person which has become final pursuant to 143-215.2 or any
order issued pursuant to 143-215.3 (a) (12).
No person, however, shall be charged with nor convicted of any violation under
the provisions hereof by reason of any act of God, war, strike, riot, or other cir-
cumstances over which such person has no control.
(b) Penalties for Violations.-Any person who shall be adjudged to have vio-
lated this article shall be guilty of a misdemeanor and shall be liable to a penalty of
not less than one hundred dollars ($100.00) nor more than one thousand dollars
($1,000.00) for each violation. In addition, if any person is adjudged to have com-
mitted such violation willfully, the court may determine that each day during which
such violation continued constitutes a separate violation subject to the foregoing
penalty: Provided, however, that where a vote of the people is required to effectuate


143-215.5


143-215.6






143-215.7 DEPARTMENT OF WATER AND AIR RESOURCES


the intent and purpose of this article by a municipality or other political subdivi-
sion of the State and the vote on the referendum is against the means or machinery
for carrying the same into effect, then, and only then, this section shall not apply
to the elected officials or to any duly authorized appointed officials or employees,
of said municipality or political subdivision. (1951, c. 606; 1967, c. 892, s. 1.)
143-215.7. Effect on laws applicable to public water supplies and
the sanitary disposal of sewage.-This article shall not be construed as amend-
ing, repealing, or in any manner abridging or interfering with those sections of the
General Statutes of North Carolina relative to the control of public water supplies,
as now administered by the State Board of Health; nor shall the provisions of
this article be construed as being applicable to or in any wise affecting the au-
thority of the North Carolina State Board of Health to control the sanitary dis-
posal of sewage as provided in article 13 of chapter 130 of the General Statutes
of North Carolina, or as affecting the powers, duties and authority of city, county,
county-city and district health departments usually referred to as local health de-
partments or as affecting the charter powers, or other lawful authority of municipal
corporations, to pass ordinances in regard to sewage disposal. (1951, c. 606; 1957,
c. 1357, s. 11; 1967, c. 892, s. 1.)
143-215.8. Injunctive relief.-Upon violation of any of the provisions of
this article, the director or the assistant director of the Board may, either before
or after the institution of proceedings for the collection of the penalty imposed by
this article for such violation, institute a civil action in the superior court in the
name of the State upon the relation of the director or the assistant director of the
Board for injunctive relief to restrain the violation and for such other or further
relief in the premises as said court shall deem proper. Neither the institution of
the action nor any of the proceedings thereon shall relieve any party to such pro-
ceedings from the penalty prescribed by this article for any violation of same.
(1967, c. 892, s. 1.)
143-215.9. Restrictions on authority of the Board.-Nothing in this
article shall be construed to:
(1) Grant to the Board any jurisdiction or authority with respect to air con-
tamination existing solely within commercial and industrial plants,
works or shops;
(2) Affect the relations between employers and employees with respect or
arising out of conditions of air contamination or air pollution;
(3) Supersede or limit the applicability of any law, rules and regulations or
ordinances relating to industrial health or safety. (1967, c. 892, s. 1.)
143-215.10. Transfer of all powers and duties of Department of
Water Resources, including personnel and records of the Board; title of
article.- (a) On and after July 1, 1967, the Board of Water Resources shall cease
to exist, and the terms of office of each of the members of the Board of Water Re-
sources shall terminate and expire on July 1, 1967. General Statutes 143-353 is
hereby repealed but said repeal shall not become effective until July 1, 1967. On
and after July 1, 1967, and as soon as reasonably practicable, all records, papers,
documents, files, supplies, funds, credits, appropriations, claims, demands, liabilities,
and all personnel, quarterly allotments, all executory contracts of the Department
of Water Resources, the Board of Water Resources, the Division of Water Pollu-
tion Control and of the State Stream Sanitation Committee shall be transferred,
conveyed, assigned, delivered and made over to the Board, and are hereby trans-
ferred, delivered, conveyed and assigned to the Board as of said date of July 1,
1967, and on and after said date the said Board shall be entitled to the exclusive
possession, custody and control of all of said items and categories referred to above,
and all the transfers ordered under this section shall be made under the supervision


143-215.10





WATER AND AIR RESOURCES


of the Department of Administration, which shall be the final authority as to all
differences and disputes arising incident to such transfers. Insofar as practicable
the expenses necessary to carry out the provisions of this article and of such trans-
fers made under authority of same shall be provided out of appropriations made to
the presently existing agencies whose functions are to be transferred to the Board,
and in the event additional funds are necessary to carry out the provisions of this
article, the Governor, with the approval of the Council of State, is hereby autho-
rized to appropriate such additional funds from the Contingency and Emergency
Fund.
(b) No transfer of functions to the Board as provided for in this section and
in this article shall affect any action, suit, proceeding, prosecution, contract, lease
or other transaction, classification, standards, orders, permits or other approval
documents issued or reports involving any function which was initiated, undertaken
or entered into prior to or pending the time of the transfer, and the title or name
of the department or board shall be substituted for the agency from which the
function was transferred, and so far as practicable the procedure provided for in
this article shall be employed in completing or disposing ot the matter. In all docu-
ments, papers, reports, proceedings, suits or actions at law wherever apt and ap-
propriate the name of the Board shall be substituted for and in lieu of the name
of any of the agencies transferred to the Board under the provisions of this article
(c) All of the powers, duties, authority, responsibilities and functions of the
Department of Water Resources and of the Water Resources Board, as set forth
in article 38 of chapter 143 of the General Statutes, are transferred to and vested
in the Board as of July 1, 1967, and on and after said date all of said powers and
duties of the Water Resources Board, as set forth in G.S. 143-354, G.S. 143-355.
as well as any other powers and duties set forth in article 38 of chapter 143, are
hereby adopted and made a part of this article as if herein copied and set forth
except G.S. 143-348, 143-349, 143-351, and 143-353, which are repealed under
conditions set forth above.
(d) This part shall be known and shall be cited as "The North Carolina Water
and Air Resources Act." (1967, c. 892, s. 2.)

Part 2. Regulation of Use of Water Resources.
143-215.11. Short title.-This part shall be known and may be cited
as the Water Use Act of 1967. (1967, c. 933, s. 1.)
Cross Reference.-See note to 143-211.
143-215.12. Declaration of purpose.-It is hereby declared that the
general welfare and public interest require that the water resources of the State he
put to beneficial use to the fullest extent to which they are capable, subject to rea-
sonable regulation in order to conserve these resources and to provide and main-
tain conditions which are conducive to the development and use of water resources.
(1967, c. 933, s. 2.)
143-215.13. Declaration of capacity use areas. (a) The Board
may declare and delineate from time to time, and may modify, capacity use areas
of the State where it finds that the use of ground water or surface water or both
require coordination and limited regulation for protection of the interests and rights
of residents or property owners of such areas or of the public interest.
(b) Within the meaning of this part "a capacity use area" is one where the
Board finds that the aggregate uses of ground water or surface water, or both,
in or affecting said area (i) have developed or threatened to develop to a degree
which requires coordination and regulation, or (ii) exceed or threaten to exceed,
or otherwise threaten or impair, the renewal or replenishment of such waters or
any part of them.


143-215.11


143-215.13





143-215.13 DEPARTMENT OF WATER AND AIR RESOURCES


(c) The Board may declare and delineate capacity use areas in accordance with
the following procedures:
(1) Whenever the Board believes that a capacity use situation exists or may
be emerging in any area of the State, it may direct the Department to
investigate and report to the Board thereon.
(2) In conducting its investigation the Department shall consult with all in-
terested persons, groups and agencies; may retain consultants; and
shall consider all factors relevant to the conservation and use of water
in the area, including established or pending water classifications un-
der the Stream Sanitation Law and the criteria for such classifications.
Following its investigation the Department shall render a written re-
port to the Board. This report shall include the Department's findings
and recommendations as to whether the water use problems of the
area involve surface waters, ground waters or both; whether effective
measures can be employed limited to surface water or to ground wa-
ter; and whether timely action by any agency or person may preclude
the need for additional regulation at that time. The report shall also
include such other findings and recommendations as the Department
deems appropriate, including recommended boundaries for any ca-
pacity use area that may be proposed.
(3) If the Board finds, following its review of the departmental report (or
thereafter following its evaluation of measures taken falling short of
regulation) that a capacity use area should be declared, it may adopt
an order declaring said capacity use area. Prior to adopting such an
order the Board shall give notice of its proposed action and shall con-
duct one or more public hearings with respect to such proposed action.
(4) Such notice shall be given not less than 30 days before the date of such
hearing and shall state the date, time, and place of hearing, the sub-
ject of the hearing, and the action which the Board proposes to take.
The notice shall either include details of such proposed action, or
where such proposed action is too lengthy for publication the notice
shall specify that copies of such detailed proposed action shall be ob-
tained on request from the office of the Board in sufficient quantity to
satisfy the requests of all interested persons.
(5) Any such notice shall be published at least once in one newspaper of gen-
eral circulation circulated in each county of the State in which the
water area affected is located, and a copy of such notice shall be mailed
to each person on the mailing list required to be kept by the Board
pursuant to the provisions off 143-215.15.
(6) Any person who desires to belheard at any such public hearing shall give
notice thereof in writing t6 the Board on or before the first date set
for the hearing. The Board is authorized to set reasonable time limits
for the oral presentation of views by any one person at any such pub-
lic hearing. The Board shall permit anyone who so desires to file a
written argument or other statement with the Board in relation to any
proposed action of the Board aty time within 30 days following the
conclusion of any public hearing or within any such additional time
as the Board may allow by notice given as prescribed in this section.
(7) Upon completion of hearings and consideration of submitted evidence and
arguments with respect to any proposed action by the Board pursuant
to this paragraph, the Board shall adopt its final action with respect
thereto and shall publish such final action as part of its official regu-
lations. The Board is empowered to modify or revoke from time to
time any final action previously taken by it pursuant to the provisions
of this section, any such modification or revocation, however, to be sub-


143-215.13





WATER AND AIR RESOURCES


ject to the procedural requirements of this part, including notice and
hearing. If the Board finds and orders that a capacity use area shall
be declared, its order shall include a delineation of the boundary of said
area, and the Board shall instruct the Director of the Department to
prepare proposed regulations consistent with the provisions of this part
and commensurate with the degree of control needed from among the
classes of permissible regulations set forth in 143-215.14. (1967, c.
933, s. 3.)
143-215.14. Regulations within capacity use areas; scope and
procedures.-(a) Following the declaration of a capacity use area by the Board,
it shall prepare proposed regulations to be applied in said area, containing such
of the following provisions as the Board finds appropriate concerning the use of
surface waters or ground waters or both:
(1) Provisions requiring water users within the area to submit reports not
more frequently than at 30-day intervals concerning quantity of water
used or withdrawn, sources of water and the nature of the use thereof.
(2) With respect to surface waters, ground waters, or both: Provisions con-
cerning the timing of withdrawals; provisions to protect against or
abate salt water encroachment; provisions to protect against or abate
unreasonable adverse effects on other water users within the area, in-
cluding but not limited to adverse effects on public use.
(3) With respect to ground waters: Provisions concerning well spacing con-
trols; and provisions establishing a range of prescribed pumping levels
(elevations below which water may not be pumped) or maximum
pumping rates, or both, in wells or for the aquifer or for any part
thereof based on the capacities and characteristics of the aquifer.
(4) Such other provisions not inconsistent with this part as the Board finds
necessary to implement the purposes of this part.
(b) The Board shall conduct one or more hearings upon the proposed regula-
tions, upon notice, in accordance with the requirements of subdivisions (4)-(6)
of 143-215.13 (c). Upon completion of the hearings and consideration of sub-
mitted evidence and arguments with respect to any proposed regulation, the Board
shall adopt its final action with respect thereto, and shall publish such final action
as part of its official regulations. The Board is empowered to modify or revoke
from time to time any final action previously taken by it pursuant to the provi-
sions of this section, any subh modifications or revocations, however, to be sub-
ject to the procedural req rements of this part, including notice and hearing.
(1967, c. 933, s. 4.)
143-215.15. Permits for water use within capacity use areas-
procedures.-(a) In areas declared by the Board to be capacity use areas no
person shall (after the expiration of such period, not in excess of six months,
as the Board may designate) withdraw, obtain, or utilize surface waters or ground
waters or both, as the case may be, in excess of 100.000 gallons ner day for any
purpose unless such person shall first obtain a permit therefore from the Board.
(b) When sufficient evidence is provided by the applicant that the water with-
drawn or used from a stream or the ground is not consumptively used, a permit
therefore shall be issued by the Board without a hearing and without the condi-
tions provided in subsection (c) of this section. Applications for such permits shall
set forth such facts as the Board shall deem necessary to enable it to establish and
maintain adequate records of all water uses within the capacity use area.
(c) In all cases in which sufficient evidence of a nonconsumptive use is not
presented the Board shall notify each person required by this part to secure a
permit of the Board's proposed action concerning such permit, and shall transmit


143-215.14


143-215.15





DEPARTMENT OF WATER AND AIR RESOURCES


with such notice a copy of any permit it proposes to issue to such persons, which
permit will become final unless a request for a hearing is made within 15 days
from the date of service of such notice. The Board shall have the power: (i) to
grant such permit with conditions as the Board deems necessary to implement the
regulations adopted pursuant to 143-215.14; (ii) to grant any temporary per-
mit for such period of time as the Board shall specify where conditions make such
temporary permit essential, even though the action allowed by such permit may
not be consistent with the Board's regulations applicable to such capacity use area;
(iii) to modify or revoke any permit upon not less than 60 days' written notice
to any person affected; and (iv) to deny such permit if the application therefore
or the effect of the water use proposed or described therein upon the water re-
sources of the area is found to be contrary to public interest. Any water user wish-
ing to contest the proposed action shall be entitled to a hearing upon request there-
for.
(d) In any proceeding pursuant to this section or 143-215.16 the Board shall
give notice with respect to all steps of the proceeding only to each person directly
affected by such proceeding who shall be made a party thereto. In all proceed-
ings pursuant to 143-215.13 or 143-215.14 the Board shall give notice as pro-
vided by these sections, and it shall also give notice of all its official acts (such
as the adoption of regulations or rules of procedure) which have, or are intended
to have, general application and effect, to all persons on its mailing list on the
date when such action is taken. It shall be the duty of the Board to keep such a
mailing list on which it shall record the name and address of each person who
requests listing thereon, together with the date of receipt of such request. Any
person may, by written request to the Board ask to be permanently recorded on
such mailing list.
(e) All notices which are required to be given by the Board or by any party
to a proceeding shall be given by registered or certified mail to all persons en-
titled thereto, including the Board. The date of receipt or refusal for such regis-
tered or certified mail shall be the date when such notice is deemed to have been
given. Notice by the Board may be given to any person upon whom a summons
may be served in accordance with the provisions of law covering civil actions in
the superior courts of this State. The Board may prescribe the form and content of
any particular notice.
(f) The following provisions shall be applicable in connection with hearings
pursuant to this part:
(1) Any hearing held pursuant to this section or 143-215.16, whether called
at the is tance of the Board or of any person, shall be held upon not
less thax 30 days' written notice given by the Board to any person
who is a party to the proceedings with respect to which such hearing
is to be held, unless a shorter notice is agreed upon by all such parties.
(2) All hearings under this part shall be before the Board, or before one or
more of its own members or before one or more of its own qualified
employees, and shall be open to the public. Any member or employee
of the Board to whom a delegation of power is made to conduct a hear-
ing shall report the hearing with its evidence and record to the Board
for decision.
(3) A full and complete record of all proceedings at any hearing under this
part shall be taken by a reporter appointed by the Board or by other
method approved by the Attorney General. Any party to a proceeding
shall be entitled to a copy of such record upon the payment of the
reasonable cost thereof as determined by the Board.
(4) The Board and its duly authorized agents shall follow generally the
procedures applicable in civil actions in the superior court insofar as
practicable, including rules and procedures with regard to the taking
61


143-215.15


143-215.15






WATER AND AIR RESOURCES


and use of depositions, the making and use of stipulations, and the
entering into of agreed settlements and consent orders.
(5) The Board, or the duly authorized agent of such Board, may administer
oaths and may issue subpoenas for the attendance of witnesses and the
production of books, papers, and other documents belonging to the said
person.
(6) Subpoenas issued by the Board, in connection with any hearing under
this part shall be directed to any officer authorized by law to serve
process, and the further procedures and rules of law applicable with
respect thereto shall be prescribed in connection with subpoenas to the
same extent as if issued by a court of record. In case of a refusal to
obey a subpoena issued by the Board, application may be made to the
superior court of the appropriate county for enforcement thereof.
(7) The burden of proof at any hearing under this part shall be upon the
person or the Board, as the case may be, at whose instance the hear-
ing is being held.
(8) No decision or order of the Board shall be made in any proceeding un-
less the same is supported by competent, material and substantial evi-
dence upon consideration of the whole record.
(9) Following any hearing, the Board shall afford the parties thereto a rea-
sonable opportunity to submit within 30 days or within such additional
time as prescribed by the Board, proposed findings of fact and con-
clusions of law and any brief in connection therewith.
(10) All orders and decisions of the Board shall set forth separately the
Board's findings of fact and conclusions of law and shall, wherever nec-
essary, cite the appropriate provision of law or other source of au-
thority on which any action or decision of the Board is based.
(11) The Board shall have the authority to adopt a seal which shall be the
seal of said Board and which shall be judicially noticed by the courts
of the State. Any document, proceeding, order, decree, special order,
rule, regulation, rule of procedure or any other official act or records
of the Board or its minutes may be certified by the Director or assis-
tant director of the Department under his hand and the seal of the
Board and when so certified shall be received in evidence in all ac-
tions or proceedings in the courts of the State without further proof
of the identity of the same if such records are competent, relevant and
material in any such action or proceeding. The Board shall have the right
to take judicial notice of all studes, reports, statistical data or any
other official reports or records of the federal government or of any
sister state and all such records, reports and data may be placed in
evidence by the Board or by any other person or interested, party where
material, relevant and competent.
(g) Any person against whom any final order or decision has been made ex-
cept where no appeal is allowed as provided by 143-215.2 (j) shall have a right
of appeal to the Superior Court of Wake County or of the county where the order
or decision is effective within 30 days after such order or decision has become
final. Upon such appeal the Board shall send a certified transcript of all testimony
and exhibits introduced before the Board, the order or decision, and the notice of
appeal to the superior court. The matter on appeal shall be heard and determined
de novo on the transcript certified to the court and any evidence or additional evi-
dence as shall be competent under rules of evidence then applicable to trials in the
superior court without a jury upon any question of fact; provided, the court shall
allow any party to introduce evidence or additional evidence upon any question
of fact. At the conclusion of the hearing, the judge shall make findings of fact
and enter his decision thereto. Appeals from the judgment and orders of the su-


143-215.15


143-215.15





DEPARTMENT OF WATER AND AIR RESOURCES


perior court shall lie to the Supreme Court. No bond shall be required of the Board
to the Supreme Court.
(1) Upon appeal filed by any party, the Board shall forthwith furnish each
party to the proceeding with a copy of the certified transcript and ex-
hibits filed with the Board. A reasonable charge shall be paid the Board
for said copies.
(2) Within 15 days after receipt of copy of certified transcript and exhibits,
any party may file with the court exceptions to the accuracy or omis-
sions of any evidence or exhibits included in or excluded from said
transcript.
(h) In adopting any regulations pursuant to the provisions of 143-215.14,
and in considering permit applications, revocations or modifications under this
section, the Board shall consider:
(1) The number of persons using an aquifer or stream and the object, extent
and necessity of their respective withdrawals or uses;
(2) The nature and size of the stream or aquifer;
(3) The physical and chemical nature of any impairment of the aquifer or
stream, adversely affecting its availability or fitness for other water
uses (including public use) ;
(4) The probable severity and duration of such impairment under foresee-
able conditions;
(5) The injury to public health, safety or welfare which would result if such
impairment were not prevented or abated;
(6) The kinds of businesses or activities to which the various uses are re-
lated;
(7) The importance and necessity of the uses claimed by permit applicants
(under this section), or of the water uses of the area (under 143-
215.14) and the extent of any injury or detriment caused or expected
to be caused to other water uses (including public use);
(8) Diversion from or reduction of flows in other water courses or aquifers;
and
(9) Any other relevant factors. (1967, c. 933, s. 5.)
143-215.16. Permits for water use within capacity use areas-
duration, transfer, reporting, measurement, present use, fees and penal-
ties.-(a) No permit under 143-215.15 shall be issued for a longer period than
the longest of the follo ing: (i) 10 years, or (ii) the duration of the existence of
a capacity use area, oryiii) the period found by the Board to be necessary for
reasonable amortization of the applicant's water withdrawal and water using facili-
ties. Permits may be renewed following their expiration upon compliance with the
provisions of 143-215.15.
(b) Permits shall not be transferred except with the approval of the Board.
(c) Every person in a capacity use area who is required by this part to secure
a permit shall file with the Board in the manner prescribed by the Board a cer-
tified statement of quantities of water used and withdrawn, sources of water, and
the nature of the use thereof not more frequently than 30-day intervals. Such
statements shall be filed on forms furnished by the Board within 90 days after the
adoption of an order by the Board declaring a capacity use area. Water users in a
capacity use area not required to secure a permit shall comply with procedures estab-
lished to protect and manage the water resources of the area. Such procedures shall
be adapted to the specific needs of the area, shall be within the provisions of this
and other North Carolina water resource acts, and shall be adopted after public
hearing in the area. The requirements embodied in the two preceding sentences
shall not apply to individual domestic water use.
(d) If any person who is required to secure a permit under this part is unable
to furnish accurate information concerning amounts of water being withdrawn or


143-215.16


143-215.16




WATER AND AIR RESOURCES


used, or if there is evidence that his certified statement is false or inaccurate or
that he is withdrawing or using a larger quantity of water or under different condi-
tions than has been authorized by the Board, the Board shall have the authority to
require such person to install water meters, or some other more economical means
for measuring water use acceptable to the Board. In determining the amount of water
being withdrawn or used by a permit holder or applicant the Board may use the
rated capacity of his pumps, the rated capacity of his cooling system, data furnished
by the applicant, or the standards or methods employed by the United States
Geological Survey in determining such quantities or by any other accepted method.
(e) In any case where a permit applicant can prove to the Board's satisfaction
that the applicant was withdrawing or using water prior to the date of declaration
of a capacity use area, the Board shall take into consideration the extent to which
such prior use or withdrawal was reasonably necessary in the judgment of the
Board to meet its needs, and shall grant a permit which shall meet those reasonable
needs. Provided, however, that the granting of such permit shall not have unrea-
sonably adverse effects upon other water uses in the area, including public use,
and including potential as well as present use.
(f) The Board shall also take into consideration in the granting of any permit
the prior investments of any person in lands, and plans for the usage of water in
connection with such lands which plans have been submitted to the Board within
a reasonable time after June 27, 1967. Provided, however, that the granting of such
permit shall not have unreasonably adverse effects upon other water uses in the
area, including public use, and including potential as well as present use.
(g) It is the intention of the General Assembly that if the provisions of subsec-
tion (e) or subsection (f) of this section are held invalid as a grant of an exclusive
or separate emolument or privilege, within the meaning of Article I, 7 of the
North Carolina Constitution, the remainder of this part shall be given effect with-
out the invalid provision or provisions.
(h) Pending the issuance or denial of a permit pursuant to subsection (e) or
(f) of this section, the applicant may continue the same withdrawal or use which
existed prior to the date of declaration of the capacity use area. (1967, c. 933, s. 6.)
143-215.17. Violations.-(a) Penalties for Violations.-Any person who
shall be adjudged to have violated any provision of this part shall be guilty of a
misdemeanor and shall be liable to a penalty of not less than one hundred dollars
($100.00) nor more than one thousand dollars ($1,000.00) for each violation. In
addition, if any person is adjudged to have committed such violation wilfully, the
court may determine that each day during which such violation continued consti-
tutes a separate violation subject to the foregoing penalty.
(b) Civil Actions.-In addition, upon violation of any of the provisions of this
part, or the regulations of the Board hereunder, the Director of the Department
may, either before or after the institution of proceedings for the collection of the
penalty imposed by this part for such violation, institute a civil action in the
superior court in the name of the State upon relation of the Director of the Depart-
ment for injunctive relief to restrain the violation and for such other or further
relief in the premises as said court shall deem proper. Neither the institution of
the action nor any of the proceedings thereon shall relieve any party to such pro-
ceedings from the penalty prescribed by this part for any violation of the same.
(1967, c. 933, s. 7.)
143-215.18. Map or description of boundaries of capacity use
areas.-(a) The Board in designating and the Department in recommending the
boundaries of any capacity use area may define such boundaries by showing them
on a map or drawings, by a written description, or by any combination thereof, to
be designated appropriately and filed permanently with the Department. Alter-
ations in these lines shall be indicated by appropriate entries upon or additions to
such map or description. Such entries shall be made under the direction of the


143-215.18


143-215.17






DEPARTMENT OF WATER AND AIR RESOURCES


Director of the Department. Photographic, typed or other copies of such map or
description, certified by the Director, shall be admitted in evidence in all courts and
shall have the same force and effect as would the original map or description. If
the boundaries are changed pursuant to other provisions of this part, the Depart-
ment may provide for the redrawing of any such map. A redrawn map shall super-
cede for all purposes the earlier map or all maps which it is designated to replace.
(b) The Department shall file with the Secretary of State a certified copy of
the map, drawings, description or combination thereof, showing the boundaries of
any capacity use area designated by the Board; and a certified copy of any redrawn
or altered map or drawing, and of any amendments or additions to written de-
scriptions, showing alterations to said boundaries. The filings required by this sub-
section shall constitute compliance with the requirements of article 18 of chapter
143 of the General Statutes. (1967, c. 933, s. 8.)
143-215.19. Rights of investigation, entry, access and inspection.
-The Board shall have the right to conduct such investigations as may reasonably
be necessary to carry out its duties prescribed in this part, and for this purpose to
enter at reasonable times upon any property, public or private, for the purpose of
investigating the condition, withdrawal or use of any waters, investigating water
sources, or investigating the installation or operation of any well or surface water
withdrawal or use facility, and to require written statements or the filing of reports
under oath, with respect to pertinent questions relating to the installation or oper-
ation of any well or surface water withdrawal or use facility; provided, that no
person shall be required to disclose any secret formula, processes or methods used
in any manufacturing operation or any confidential information concerning busi-
ness activities carried on by him or under his supervision. No person shall refuse
entry or access to any authorized representative of the Board who requests entry
tor purposes of a lawful inspection, and who presents appropriate credentials, nor
hhall any person obstruct, hamper or interfere with any such representative while
in the process of carrying out his official duties consistent with the provisions ot
this part. (1967, c. 933, s. 9.)
143-215.20. Rules and regulations.-The Board may adopt and modify
from time to time rules and regulations consistent with the provisions of this part
to implement the provisions of this part. All such rules and regulations, and modi-
fications thereof, shall be filed with the Secretary of State as required by article 18
of chapter 143 of the General Statutes. (1967, c. 933, s. 10.)
143-215.21. Definitions.-Unless the context otherwise requires, the
following terms as used in this part are defined as follows:
(1) "Area of the State" means any municipality or county or portion thereof
or other substantial geographical area of the State as may be desig-
nated by the Board.
(2) "Board" means the Board of Water Resources or its successor.
(3) "Consumptive use" means any use of water withdrawn from a stream
or the ground other than a "nonconsumptive use," as defined in this
part.
(4) "Department" means the Department of Water Resources, or its suc-
cessor.
(5) "Nonconsumptive use" means (i) the use of water withdrawn from a
stream in such a manner that it is returned to the stream without sub-
stantial diminution in quantity at or near the point from which it was
taken; or, if the user owns both sides of the stream at the point of with-
drawal, the water is returned to the stream upstream of the next
property below the point of diversion on either side of the stream; (ii)
the use of water withdrawn from a ground water system or aquifer in
such a manner that it is returned to the ground water system or acquifer


143-215.19


143-215.21





WATER AND AIR RESOURCES


from which it was withdrawn without substantial diminution in quan-
tity or substantial impairment in quality at or near the point from which
it was withdrawn; (iii) provided, however, that (in determining
whether a use of ground water is nonconsumptive) the Board may take
into consideration whether any material injury or detriment to other
water users of the area by reason of reduction of water pressure in the
acquifer or system has not been adequately compensated by the permit
applicant who caused or substantially contributed to such injury or
detriment.
(6) "Person" shall mean any and all persons, including individuals, firms,
partnerships, associations, public or private institutions, municipalities
or political subdivisions, governmental agencies, or private or public
corporations organized under the laws of this State or any other state
or country.
(7) "Waters" shall mean any stream, river, brook, swamp, lake, sound, tidal
estuary, bay, creek, reservoir, waterway or any other body or accumula-
tion of water, surface or underground, public or private, natural or
artificial, which is contained within, flows through, or borders upon
this State or any portion thereof, including those portions of the Atlantic
Ocean over which this State has jurisdiction. (1967, c. 933, s. 11.)
143-215.22. Law of riparian rights not changed. -Nothing con-
tained in this part shall change or modify existing common or statutory law with
respect to the relative rights of riparian owners concerning the use of surface water
in this State. (1967, c. 933, s. 12.)

Part 3. Dam Safety Law.
143-215.23. Short title.-This part shall be known as may be cited as
the Dam Safety Law of 1967. (1967, c. 1068, s. 1.)
Editor's Note. Section 18 of Session
Laws 1967, c. 1068, makes this part effec-
tive Jan. 1, 1968.
143-215.24. Declaration of purpose.-It is the purpose of this part to
provide for the certification and inspection of certain dams in the interest of public
health, safety, and welfare, in order to reduce the risk of failure of such dams; to
prevent injuries to persons, damage to property and loss of reservoir storage; and
to ensure maintenance of stream flows below such dams of adequate quantity and
quality. (1967, c. 1068, s. 2.)
143-215.25. Definitions.-As used in this part, unless the context other-
wise requires:
(1) "Board" means the North Carolina Board of Water Resources.
(2) "Dam" means the dam (and appurtenant works) for the impoundment or
diversion of water, except that it shall not include:
a. Any dam constructed by the United States Army Corps of Engi-
neers, the Tennessee Valley Authority, or any other department
or agency of the United States government, when such depart-
ment or agency designed or approved plans and supervised
construction.
b. Any dam or flood retarding structure constructed with financial
assistance from the United States Soil Conservation Service,
when said agency designed or approved plans and supervised
construction.
c. The exemptions conferred by items a and b of this subdivision
shall cease when the supervising federal agency relinquishes
authority for operation and maintenance to a local entity.


143-215.25


143-215.22






143-215.26 DEPARTMENT OF WATER AND AIR RESOURCES 143-215.26

d. Any dam licensed by the Federal Power Commission, or for
which a license application is pending with the Federal Power
Commission, or for use in connection with electric generating
facilities to be constructed pursuant to a certificate of public
convenience and necessity from the North Carolina Utilities
Commission.
e. Any dam under a single private ownership, providing protection
only to land or other property under such ownership, and posing
no threat to life or property below the property under such
single ownership.
f. Any dam less than 15 feet in height (measured from original
stream bottom to crest of dam) or whose impoundment capacity
is less than 10 acre-feet, or any dam costing less than five
thousand dollars ($5,000.00).
(3) "Department" means the North Carolina Department of Water Re-
resources.
(4) "Minimum stream flows" or "minimum flows" means stream flows of a
quantity and quality sufficient in the judgment of the Department to
meet and maintain stream classifications and water quality standards
established by the State Stream Sanitation Committee under the North
Carolina Stream Sanitation Law and applicable to the waters affected
by the project under consideration. In order to ensure that such
classifications and standards shall be met and maintained, the Depart-
ment may impose such conditions and requirements in orders and
written approvals issued under this part as, in its judgment, may be
necessary to this end, including conditions and requirements relating to
the release or discharge of designated flows from impoundments, the
location or design of water outlets for impoundments and of water
intakes, the amount and timing of withdrawal of water from a reservoir,
and the construction of submerged weirs or other devices designed to
satisfy minimum stream flow requirements.
(5) "Person" includes any and all persons, including individuals, firms, part-
nerships, associations, public or private institutions, municipalities or
political subdivisions, governmental agencies, or private or public corpo-
rations organized or existing under the laws of this State or of any
other state or country. (1967, c. 1068, s. 3.)
143-215.26. Construction of dams.-(a) No person shall begin the
construction of any dam, as defined by this part, until at least 10 days after filing
with the Department a statement concerning its height, impoundment capacity,
purpose, location and other information required by the Department. Persons
proposing construction described in 143-215.25, subparagraphs (2) e and f will
comply with malaria control requirements of the State Board of Health. If on
the basis of this information the Department is of the opinion that the proposed dam
is not exempt from the provisions of this part, it shall so notify the applicant, and
construction shall not be commenced until a full application is filed by the applicant
and approved as provided by 143-215.29. The Department may also require of
applicants so notified the filing of such additional information as it deems necessary,
including, but not limited to, streamflow and rainfall data, maps, plans and specifica-
tions. Every applicant for approval of a dam subject to the provisions of this part
shall also file with the Department the certificate of an engineer or contractor
legally qualified in the State of North Carolina that he is responsible for the design
of the dam, and that said design is safe and adequate. Should the applicant have
a professional engineering staff the certificate of a registered professional engineer
member of that staff legally qualified in the State of North Carolina will constitute
compliance.





WATER AND AIR RESOURCES


(b) When an application has been completed pursuant to the preceding subsec-
tion, the Department shall refer copies of the completed application papers to the
State Board of Health, the Wildlife Resources Commission, the Department of
Conservation and Development, the State Highway Commission, and such other
State and local agencies as it deems appropriate for review and comment. (1967,
c. 1068, s. 4.)
143-215.27. Repair, alteration, or removal of dam. (a) Before
commencing the repair, alteration or removal of a dam, application shall be made
for written approval by the Department, except as otherwise provided by this part.
The application shall state the name and address of the applicant, shall adequately
detail the changes it proposes to effect and shall be accompanied by maps, plans and
specifications setting forth such details and dimensions as the Department requires.
The Department may waive any such requirements. The application shall give such
other information concerning the dam and reservoir required by the Department,
such information concerning the safety of any change as it may require, and shall
state the proposed time of commencement and completion of the work. When an
application has been completed it shall be referred by the Department for agency
review and report, as provided by subsection (b) of 143-215.26 in the case of
original construction.
(b) When repairs are necessary to safeguard life and property they may be
started immediately but the Department shall he notified forthwith of the proposed
repairs and of the work under way, and they shall be made to conform to its orders.
(1967, c. 1068, s. 5.)
143-215.28. Action by Board upon applications. (a) Following
receipt of agency comments the Board shall approve, disapprove, or approve subject
to conditions necessary to ensure safety and to satisfy minimum stream flow
requirements, all applications made pursuant to this part.
(b) A defective application shall not be rejected but notice of the defects shall
be sent to the applicant by registered mail. If the applicant fails to file a perfected
application within 30 days the original shall be canceled unless further time is
allowed.
(c) If the Board disapproves an application, one copy shall be returned with a
statement of its objections. If an application is approved, the approval shall be
attached thereto, and a copy returned by registered mail. Approval shall be granted
under terms, conditions and limitations which the Board deems necessary to
safeguard life and property.
(d) Construction shall be commenced within one year after the date of approval
of the application or such approval is void. The Board upon written application and
good cause shown may extend the time for commencing construction. Notice by
registered mail shall be given the Board at least 10 days before construction is
commenced. (1967, c. 1068, s. 6.)
143-215.29. Supervision by qualified engineers; reports and modi-
fication during work.-(a) Any project for which the Board's approval is
required under 143-215.26 and 143-215.27 shall be designed and supervised by
an engineer legally qualified in the State of North Carolina.
(b) During the construction, enlargement, repair, alteration or removal of a
dam, the Board may require such progress reports from the supervising engineer
as it deems necessary.
(c) If during construction, reconstruction, repair, alteration or enlargement of
any dam, the Board finds the work is not being done in accordance with the pro-
visions of the approval and the approved plans and specifications, it shall give
written notice by registered mail or personal service to the person who received the
approval and to the person in charge of construction at the dam. The notice shall
state the particulars in which compliance has not been made, and shall order
immediate compliance with the terms of the approval, and the approved plans and


143-215.29


143-215.27





143-215.30 DEPARTMENT OF WATER AND AIR RESOURCES


specifications. The Board may order that no further construction work be under-
taken until such compliance has been effected and approved by the Board. A
failure to comply with the approval and the approved plans and specifications shall
render the approval revocable unless compliance is made after notice as provided in
this section. (1967, c. 1068, s. 7.)
143-215.30. Notice of completion; certification of final approval.
-(a) Immediately upon completion, enlargement, repair, alteration or removal
of a dam, notice of completion shall be given the Board. As soon as possible there-
after supplementary drawings or descriptive matter showing or describing the dam
as actually constructed shall be filed with the Board in such detail as the Board
may require.
(b) When an existing dam is enlarged, the supplementary drawings and de-
scriptive matter need apply only to the new work.
(c) The completed work shall be inspected by the supervising engineers, and
upon finding that the work has been done as required and that the dam is safe and
satisfies minimum stream flow requirements, they shall file with the Board a cer-
tificate that the work has been completed in accordance with approved design, plans,
specifications and other requirements. Unless the Board has reason to believe that
the dam is unsafe or is not in compliance with any applicable requirement, regula-
tion, or law, the Board shall grant final approval of the work in accordance with
the certificate, subject to such terms as it deems necessary for the protection of life
and property.
(d) Pending issuance of the Board's final approval, the dam shall not be used
except on written consent of the Board, subject to conditions it may impose. (1967,
c. 1068, s. 8.)
143-215.31. Supervision over maintenance and operation of dams.
-The Board shall have jurisdiction and supervision over the maintenance and
operation of dams to safeguard life and property and to satisfy minimum stream
flow requirements. The Board is hereby authorized to adopt such standards for
maintenance and operation of dams as may be necessary for the purposes of this
part. In its discretion the Board may vary the standards applicable to various dams,
giving due consideration to the minimum flow requirements of the stream, the
type and location of the structure, the hazards to which it may be exposed, and the
peril of life and property in the event of failure of a dam to perform its function.
(1967, c. 1068, s. 9.)
143-215.32. Inspection of dams.-(a) The Board is hereby authorized
at any time to inspect through consulting engineers any dam upon receipt of a
written request of any affected person or agency, or upon its own motion. Within
the limits oi available funds the Board shall endeavor to provide for inspection
of all dams at intervals of approximately five years.
(b) If the Board finds that any dam is not sufficiently strong, or is not main-
tained in good repair or operating condition, or is dangerous to life or property,
or does not satisfy minimum stream flow requirements, the Board shall issue an
order directing the owner or owners of the dam to make at his or their expense
such maintenance, alteration, repair, reconstruction, change in construction or
location, or removal as may be deemed necessary by the Board within a time to be
limited by the order, not less than 90 days from the date of issuance of each order,
except in the case of extreme danger to the safety of life or property, as provided
by subsection (c) of this section.
(c) If at any time the condition of any dam becomes so dangerous to the safety
of life or property, in the opinion of the Board, as not to permit sufficient time for
issuance of an order in the manner provided by subsection (b) of this section,
the Board may immediately take such measures as may be essential to provide
emergency protection to life and property, including the lowering of the level of
a reservoir by releasing water impounded or the destruction in whole or in part of


143-215.32




WATER AND AIR RESOURCES


the dam or reservoir. The Board may recover the costs of such measures from the
owner or owners by appropriate legal action. (1967, c. 1068, s. 10.)
143-215.33. Judicial review.-If an applicant under this part, or owner
of a dam which is the subject of an application, or any landowner whose property
would be endangered by failure of a dam, are dissatisfied with any final order or
decision of the Board issued under this part, he (or they, as the case may be)
shall have a right of appeal to the superior court pursuant to the provisions of
article 33 of chapter 143 of the General Statutes. (1967, c. 1068, s. 11.)
143-215.34. Investigations by Department; rules and regulations;
employment of consultants.-The Department shall make such investigations
and assemble such data as it deems necessary for a proper review and study of the
design and construction of dams, reservoirs and appurtenances, and for such
purposes may enter upon private property. The Board may adopt such rules and
regulations as may be necessary to carry out the purposes of this part. The Board
may employ or make such agreements with geologists, engineers, or other expert
consultants and such assistants as it deems necessary to carry out the provisions of
this part. (1967, c. 1068, s. 12.)
143-215.35. Liability for damages.-No action shall be brought against
the State of North Carolina, the Department or Board of Water Resources or
any agent or employee of such Department or Board, for damages sustained
through the partial or total failure of any dam or its maintenance by reason of
any supervision or other action taken pursuant to or under this part. Nothing in
this part shall relieve an owner or operator of a dam from the legal duties, obliga-
tions and liabilities arising from such ownership or operation. (1967, c. 1068, s. 13.)
143-215.36. Violations; penalties.-(a) Penalties for Violations.-
Any person who shall be adjudged to have violated this article shall be guilty of a
misdemeanor and shall be liable to a penalty of not less than one hundred dollars
($100.00) nor more than one thousand dollars ($1,000.00) for each violation. In
addition, if any person is adjudged to have committed such violation willfully, the
court may determine that each day during which such violation continued consti-
tutes a separate violation subject to the foregoing penalty.
(b) Injunctive and Other Relief.-In addition, upon violation of any of the pro-
visions of this part, or the regulations of the Department hereunder, the Director
of the Department may, either before or after the institution of proceedings for the
collection of the penalty imposed by this part for such violation, institute a civil
action in the superior court in the name of the State upon relation of the Director
of the Department for injunctive relief to restrain the violation and for such other
or further relief in the premises as said court shall deem proper. Neither the institu-
tion of the action nor any of the proceedings thereon shall relieve any party to such
proceedings from the penalty prescribed by this part for any violation of the
same. (1967, c. 1068, s. 14.)
143-215.37. Rights of investigation, entry, access and inspection.
-The Board shall have the right to conduct such investigations as it may reasonably
deem necessary to carry out its duties prescribed in this part, and for this pur-
pose to enter at reasonable times upon any property, public or private, for the
purpose of investigating the condition, construction, or operation of any dam or
associated equipment facility or property, and to require written statements or the
filing of reports under oath, with respect to pertinent questions relating to the con-
struction or operation of any dam: Provided, that no person shall be required to
disclose any secret formula, processes or methods used in any manufacturing
operation or any confidential information concerning business activities carried on
by him or under his supervision. No person shall refuse entry or access to any
authorized representative of the Board who requests entry for purposes of inspec-
tion, and who presents appropriate credentials, nor shall any person obstruct,


143-215.33


143-215.37





DEPARTMENT OF WATER RESOURCES


hamper or interfere with any such representative while in the process of carrying
out his official duties. (1967, c. 1068, s. 15.)

ARTICLE 33A.
Rules of Evidence in Administrative Proceedings before State Agencies.
143-317. Definitions.-As used in this article,
(1) "Administrative agency" means any State authority, board, bureau,
commission, committee, department, or officer authorized by law to
make administrative decisions, except those agencies in the legislative
and judicial departments of government, the North Carolina Utilities
Commission, the North Carolina Industrial Commission, the Employ-
ment Security Commission of North Carolina, and the institutions and
agencies that operate pursuant to chapters 115, 115A, and 116 of the
General Statutes.
(2) "Party" means each person or agency named or admitted as a party, or
properly seeking and entitled as of right to be admitted as a party.
(3) "Proceeding" shall mean any proceeding, by whatever name called, be-
fore an administrative agency of the State, wherein the legal rights, du-
ties, or privileges of specific parties are required by law or by consti-
tutional right to be determined after an opportunity for agency hear-
ing. (1967, c. 930.)
143-318. Rules of evidence official notice.-In all proceedings:
(1) Incompetent, irrelevant, immaterial, unduly repetitious, and hearsay
evidence shall be excluded. The rules of evidence as applied in
the superior and district court divisions of the General Court of Justice
shall be followed.
(2) Documentary evidence may be received in the form of copies or ex-
cerpts, if the original is not readily available. Upon request, parties
shall be given an opportunity to compare the copy with the original.
(3) Notice may be taken of judicially cognizable facts. In addition, notice
may be taken of generally recognized technical or scientific facts within
the agency's specialized knowledge. Parties shall be notified either be-
fore or during the hearing, or by reference in preliminary reports or
otherwise, of the material noticed, including any staff memoranda or
data, and they shall be afforded an opportunity to contest the material
so noticed. The agency's experience, technical competence, and special-
ized knowledge may be utilized in the evaluation of the evidence.
(1967, c. 930.)

ARTICLE 38.
Department of Water Resources.
143-348, 143-349: Repealed by Session Laws 1967, c. 892, s. 2.
Cross Reference.-For present provisions
as to Department of Water and Air Re-
sources, see 143-211 et seq.
143-350. Definitions.-Definitions as used in this article:
"Board" means the Board of Water and Air Resources created by G.S. 143-
214.
"Department" means the Department of Water and Air Resources created by
G. S. 143-212. (1959, c. 779, s. 1; 1967, c. 892, s. 12.)
Editor's Note. The 1967 amendment
rewrote this section.


143-317


143-350




WATER AND AIR RESOURCES


143-351: Repealed by Session Laws 1967, c. 892, s. 2.
143-352. Purpose of article.-The purpose of this article is to create
a State agency to coordinate the State's water resource activities; to devise plans
and policies and to perform the research and administrative functions necessary
for a more beneficial use of the water resources of the State, in order to insure
improvements in the methods of conserving, developing and using those resources.
(1959, c. 779, s. 1.)
143-353: Repealed by Session Laws 1967, c. 892, s. 2, effective July 1,
1967.
143-354. Ordinary powers and duties of the Board.-(a) Powers
and Duties in General.-Except as otherwise specified in this article, the powers
and duties of the Board shall be as follows:
(1) The Board shall carry out a program of planning and education concern-
ing the most beneficial long-range conservation and use of the water
resources of the State. It shall investigate the long-range needs of
counties and municipalities and other local governments for water
supply storage available in federal projects.
(2) The Board shall advise the Governor as to how the State's present water
research activities might be coordinated.
(3) The Board, based on information available, shall notify any municipality
or other governmental unit of potential water shortages or emergencies
foreseen by the Board affecting the water supply of such municipality
or unit together with the Board's recommendations for restricting and
conserving the use of water or increasing the water supply by or in
such municipality or unit. Failure reasonably to follow such recom-
mendations shall make such municipality or other governmental unit
ineligible to receive any emergency diversion of waters as hereinafter
provided.
(4) The Board is authorized to call upon the Attorney General for such legal
advice as is necessary to the functioning of the Board.
(5) Recognizing the complexity and difficulties attendant upon the recom-
mendation of the General Assembly of fair and beneficial legislation
affecting the use and conservation of water, the Board shall solicit from
the various water interests of the State their suggestions thereon.
(6) The Board may hold public hearings for the purpose of obtaining evi-
dence and information and permitting discussion relative to water re-
sources legislation and shall have the power to subpoena witnesses
therefore.
(7) All recommendations for proposed legislation made by the Board shall be
available to the public.
(8) The Board shall adopt such rules and regulations as may be necessary
to carry out the purposes of this article.
(9) Any member of the Board or any person authorized by it, shall have the
right to enter upon any private or public lands or waters for the pur-
pose of making investigations and studies reasonably necessary in the
gathering of facts concerning streams and watersheds, subject to re-
sponsibility for any damage done to property entered.
(10) The Board is authorized to provide to federal agencies the required as-
surances, subject to availability of appropriations by the General As-
sembly or applicable funds or assurances from local governments, of
nonfederal cooperation for water supply storage and other congres-
sionally-authorized purposes in federal projects.
(11) The Board is authorized to assign or transfer to any county or mu-
nicipality or other local government having a need for water supply


143-351


143-354





DEPARTMENT OF WATER RESOURCES


storage in federal projects any interest held by the State in such stor-
age, upon the assumption of repayment obligation therefore, or com-
pensation to the State, by such local government. The Board shall also
have the authority to reassign or transfer interests in such storage
held by local governments, if indicated by the investigation of needs
made pursuant to subsection (a) (1) of this section, subject to eq-
uitable adjustment of financial responsibility.
(b) Declaration of Water Emergency.-Upon the request of the governing body
of a county, city or town the Board shall conduct an investigation to determine
whether the needs of human consumption, necessary sanitation and public safety
require emergency action as hereinafter provided. Upon making such determina-
tion, the Board shall conduct a public hearing on the question of the source of re-
lief water after three days' written notice of such hearing has been given to any
persons having the right to the immediate use of water at the point from which
such water is proposed to be diverted. After determining the source of such relief
water the Board shall then notify the Governor and he shall have the authority
to declare a water emergency in an area including said county, city or town and
the source or sources of water available for the relief hereinafter provided; pro-
vided, however, that no emergency period shall exceed thirty days but the Gov-
ernor may declare any number of successive emergencies upon request of the
Board.
(c) Water Emergency Powers and Duties of the Board.-Whenever, pursuant
to this article, the Governor has declared the existence of a water emergency with-
in a particular area of the State, the Board shall have the following duties and
powers to be exercised only within said area and only during such time as the
Governor has, pursuant to this article, designated as the period of emergency:
(1) To authorize any county, city or town in which an emergency has been
declared to divert water in the emergency area sufficient to take care
of the needs of human consumption, necessary sanitation and public
safety. Provided, however, there shall be no diversion of waters from
any stream or body of water pursuant to this article unless the person
controlling the water or sewerage system into which such waters are
diverted shall first have limited and restricted the use of water in such
water or sewerage system to human consumption, necessary sanitation
and public safety and shall have effectively enforced such restrictions.
Diversion of waters shall cease upon the termination of the water
emergency or upon the finding of the Board that the person controlling
the water or sewerage system using diverted waters has failed to en-
force effectively the restrictions on use to human consumption and nec-
essary sanitation and public safety. In the event waters are diverted
pursuant to this article, there shall be no diversion to the same person
in any subsequent year unless the Board finds as fact from evidence
presented that the person controlling the water or sewerage system has
made reasonable plans and acted with due diligence pursuant thereto
to eliminate future emergencies by adequately enlarging such person's
own water supply.
(2) To make such reasonable rules and regulations governing the conserva-
tion and use of diverted waters within the emergency area as shall be
necessary for the health and safety of the persons who reside within
the emergency area; and the violation of such rules and regulations
during the period of the emergency shall constitute a misdemeanor pun-
ishable by a fine of not more than one thousand dollars ($1,000) or
imprisonment for not more than one year or both within the discretion
of the court; provided, however, that before such rules and regulations
shall become effective, they shall be published in not less than two con


143-354


143-354





WATER AND AIR RESOURCES


secutive issues of not less than one newspaper generally circulated in
the emergency area.
(d) Temporary Rights of Way.-When any diversion of waters is ordered by
the Board pursuant to this article, the person controlling the water or sewerage
system into which such waters are diverted is hereby empowered to lay necessary
temporary water lines for the period of such emergency across, under or above any
and all properties to connect the emergency water supply to an intake of said wa-
ter or sewerage system. The route of such water lines shall be prescribed by the
Board.
(e) Compensation for Water Allocated During Water Emergency and Tempo-
rary Rights of Way.-Whenever the Board, pursuant to this article has ordered
any diversion of waters, the person controlling the waters or sewerage system into
which such waters are diverted shall be liable to all persons suffering any loss or
damage caused by or resulting from the diversion of such waters or caused by or
resulting from the laying of temporary water lines to effectuate such diversion.
The Board, before ordering such diversion, shall require that the person against
whom liability attaches hereunder to post bond with a surety approved by the
Board in an amount determined by the Board and conditioned upon the payment
of such loss or damage. (1959, c. 779, s. 1; 1967, c. 1071, ss. 1, 2.)
Cross References.-As to powers and du- to certain dams under the Dam Safety
ties of Board as to construction and aban- Law, see 143-215.23 to 143-215.37.
donment of water wells, see 87-83 to Editor's Note. The 1967 amendment
87-96. As to general and auxiliary powers added the second sentence of subdivision
of Board, see 143-215.3. As to restrictions (1) of subsection (a) and added subdivi-
on authority of Board, see 143-215.9. As sions (10) and (11) to such subsection.
to powers and duties of Board with respect
143-355. Transfer of certain powers, duties, functions and re-
sponsibilities of the Department of Conservation and Development and
of the Director of said Department.-(a) Transfer Generally.-There are
hereby transferred to the Department of Water Resources those powers, duties,
functions and responsibilities relating to water resources now vested in the De-
partment of Conservation and Development of the State of North Carolina, and
the Director thereof.
(b) Functions to Be Performed.-It shall be the duty of the Department of
Water Resources to perform the following functions:
(1) To request the North Carolina Congressional Delegation to apply to
the Congress of the United States whenever deemed necessary for ap-
propriations for protecting and improving any harbor or waterway in
the State and for accomplishing needed flood control, shore-erosion
prevention, and water-resources development for water supply, water
quality control, and other purposes.
(2) To initiate, plan, and execute a long-range program for the preservation,
development and improvement of rivers, harbors, and inland ports,
and to promote the public interest therein.
(3) To prepare and recommend to the Governor and the General Assembly
any legislation which may be deemed proper for the preservation and
improvement of rivers, harbors, dredging of small inlets, provision for
safe harbor facilities, and public tidewaters of the State.
(4) To make engineering studies, hydraulic computations, hydrographic sur-
veys, and reports regarding shore-erosion projects, dams, reservoirs,
and river-channel improvements; to develop, for budget and planning
purposes, estimates of the costs of proposed new projects; to prepare
bidding documents, plans, and specifications for harbor, coastal, and
river projects; and to inspect materials, workmanship, and practices of
contractors to assure compliance with plans and specifications.


143-355


143-355






DEPARTMENT OF WATER RESOURCES


(5) To cooperate with the United States Army Corps of Engineers in caus-
ing to be removed any wrecked, sunken or abandoned vessel or un-
authorized obstructions and encroachments in public harbors, channels,
waterways, and tidewaters of the State.
(6) To cooperate with the United States Coast Guard in marking out and
establishing harbor lines and in placing buoys and structures for mark-
ing navigable channels.
(7) To cooperate with federal and interstate agencies in planning and de-
veloping water-resource projects for navigation, flood control, hurri-
cane protection, shore-erosion prevention, and other purposes.
(8) To provide professional advice to public and private agencies, and to
citizens of the State, on matters relating to tidewater development, river
works, and watershed development.
(9) To discuss, with federal, State, and municipal officials and other inter-
ested persons, a program of development of rivers, harbors, and related
resources.
(10) To make investigations and render reports requested by the Governor
and the General Assembly.
(11) To participate in activity of the National Rivers and Harbors Con-
gress, the American Shore and Beach Preservation Association, the
American Watershed Council, the American Water Works Associa-
tion, the Amer.can Society of Civil Engineers, the Council of State
governments, the Conservation Foundation, and other national agen-
cies concerned with conservation and development of water resources.
(12) To prepare and maintain climatological and water-resources records
and files as a source of information easily accessible to the citizens of
the State and to the public generally.
(13) To formulate and administer a program of dune rebuilding, hurricane
protection, and shore-erosion prevention.
(14) To include in the biennial budget the cost of performing the additional
functions indicated above.
(15) To initiate, plan, study, and execute a long range flood plain manage-
ment program for the promotion of health, safety, and welfare of the
public. In carrying out the purposes of this subsection, the primary re-
sponsibility of flood plain management rests with the local levels of
government and it is, therefore, the policy of this State and of this
Department to provide guidance, coordination, and other means of as-
sistance, along with the other agencies of this Stale and with the local
levels of government, to effectuate adequate flood plain management
programs.
This Department is directed to pursue an active educational program of flood
plain management measures, to include in each biennial report a statement of flood
damages, location where flood plain management is desirable, and suggested legis-
lation, if deemed desirable, and within its capacities to provide advice and assis-
Stance to State agencies and local levels of government.
(c) : Repealed by Session Laws 1961, c. 315.
(d) Investigation of Coasts, Ports and Waterways of State.-The Department
of Water Resources is designated as the official State agency to investigate and
cause investigations to be made of the coasts, ports and waterways of North Caro-
lina and to cooperate with agencies of the federal and State government and other
political subdivisions in making such investigations. Provided, however, that the
provisions of this section shall not be construed as in any way interferingwith the
powers and duties of the Utilities Commission, relating to the acquiring of rights
of way for the Intra-Coastal Waterway; or to authorize the Department of Water
Resources to represent the State in connection with such duties.


143-355


143-355






WATER AND AIR RESOURCES


(e) Registration with Department of Water Resources Required; Registration
Periods.-Every person, firm or corporation engaged in the business of drilling,
boring, coring or constructing wells in any manner with the use of power machin-
ery in this State, shall register annually with the North Carolina Department of
Water Resources on forms to be furnished by the said Department. The regis-
tration required hereby shall be made during the period from January 1 to Janu-
ary 31 of each year.
(f) Samples of Cuttings to Be Furnished the Department of Water Resources
When Requested.-Every person, firm or corporation engaged in the business of
drilling, boring, coring or constructing wells in any manner by the use of power
machinery shall furnish the Department of Water Resources samples of cuttings
from such depths as the Department may require from all wells constructed by
such person, firm or corporation, when such samples are requested by the Depart-
ment. The Department shall bear the expense of delivering such samples. The
Department shall, after an analysis of the samples submitted, furnish a copy of
such analysis to the owner of the property on which the well was constructed;
the Department shall not report the results of any such analysis to any other
person whatsoever until the person legally authorized to do so authorizes in writ-
ing the release of the results of the analysis.
(g) Reports of Each Well Required.-Every person, firm or corporation en-
gaged in the business of drilling, boring, coring, or constructing wells with power
machinery within the State of North Carolina shall, within 30 days of the com-
pletion of each well, report to the Department of Water Resources on forms fur-
nished by the Department the location, size, depth, number of feet of casing used,
method of finishing, and formation log information of each such well. In addition
such person, firm or corporation shall report any tests made of each such well
including the method of testing, length of test, draw-down in feet and yield in
gallons per minute. The person, firm or corporation making such report to
the Department of Water Resources shall at the time such report is made also
furnish a copy thereof to the owner of the property on which the well was con-
structed.
(h) Drilling for Petroleum and Minerals Excepted.-The provisions of this
article shall not apply to drillings for petroleum and minerals.
(i) Penalty for Violation.-Any person violating the provisions of subsections
(e), (f) and (g) of 143-355 shall be guilty of a misdemeanor and, upon con-
viction, shall be punished by a fine of fifty dollars ($50.00). Each violation shall
constitute a separate offense.
(j) Miscellaneous Duties.-There are also transferred to the Department of
Water Resources the duties of the Board of Conservation and Development, as set
forth in G. S. 113-8, to make investigations of water supplies and water powers,
prepare and maintain a general inventory of the water resources of the State and
take such measures as it may consider necessary to promote their development;
and to supervise, guide, and control the performance of the duties set forth in sub-
section (b) of this section and to hold hearings with regard thereto. In connec-
tion with administration of the well drilling law the Department of Conservation
and Development shall, if requested by the Department of Water Resources, pre-
pare analyses of well cuttings for mineral and petroleum content.
(k) Water Use Information.-Any person using, withdrawing, diverting or
obtaining water from surface streams, lakes and underground water sources shall,
upon the request of the Department, file a monthly report with the Department of
Water Resources showing the amount of water used, withdrawn, diverted or ob-
tained from such sources. Such report shall be on a form supplied by the Depart-
ment and shall show the identification of the water well or other withdrawal
facility, location, withdrawal rate (measured in gallons per minute), and total
gallons withdrawn during the month. Reports required to be filed under this sub-
section shall be filed on or before the fifteenth day of the month succeeding the
76


143-355


143-355





DEPARTMENT OF WATER RESOURCES


month during which the using, withdrawing, diverting or obtaining water required
to be reported occurred. Provided, however, this provision does not include use for
household, livestock, or gardens. All reports required under this subsection are
provided solely for the purpose of the Department of Water Resources. (1959, c.
779, s. 3; 1961, c. 315; 1967, c. 1069, ss. 1-3; c. 1070, s. 1; c. 1071, ss. 3, 4; c.
1117, s. 1.)
Editor's Note.-The 1961 amendment re- The third 1967 amendment added the
pealed subsection (c). provisions for water resources development
The first 1967 amendment, effective Jan. for water supply, water quality control,
1, 1968, deleted "July 1 to July 31 or dur- and other purposes to subdivision (1) of
ing the period from" near the end of the subsection (b) and rewrote subdivision (7)
second sentence of subsection (e), rewrote of that subsection.
subsection (f), and rewrote subsection The fourth 1967 amendment added sub-
(g). Section 5 of the amendatory act pro- section (k) at the end of the section. Sec-
vides that the act shall not repeal any tion 2 of the amendatory act provides that
other laws relating to the reporting of test the authority given is in addition and sup-
drillings or borings on public or state- plemental to all other authority relating to
owned lands, the reporting of water use information.
The second 1967 amendment added sub-
division (15) and the second paragraph to
subsection (b).
143-356. Continuation of Stream Sanitation Committee, Division
of Water Pollution Control and Director of Division within Department
of Water Resources.-(a) The State Stream Sanitation Committee as provided
for by article 21, chapter 143 G. S., as amended is hereby transferred to and con-
tinued within the State Department of Water Resources without change in its
powers, duties, responsibilities and functions.
(b) The Division of Water Pollution Control of the State Board of Health and
the office of Director of such Division as provided for in G. S. 143-214 are hereby
transferred to and continued within the Department of Water Resources as the
Division of Water Pollution Control of the Department of Water Resources. The
Board of Water Resources may transfer additional functions to the said Division
and Director and may revise their titles appropriately to reflect any such transfer
of functions.
(c) The Department of Water Resources as Administrative Agent of State
Stream Sanitation Committee.-The Department of Water Resources through its
Division of Water Pollution Control, shall be the administrative agent of the State
Stream Sanitation Committee, and subject to the general policies of the Committee,
shall make such inspections, conduct such investigations, and do such other things
as may be necessary to carry out the provisions of article 21 of chapter 143 of the
General Statutes. The Attorney General shall act as attorney for the Committee,
and shall initiate actions in the name of, and at the request of, the Committee.
(d) Division of Water Pollution Control.-The Division of Water Pollution
Control shall be responsible for administering the provisions of article 21 of chapter
143 and shall be responsible for performing such other duties relating to the control
of municipal, institutional, and industrial sewerage and waste collection and dis-
posal systems as may be assigned to it by the Board of Water Resources. The
Director of such Division shall be selected by the Board of Water Resources from
nominees acceptable to both the Board and the Committee. He shall be a well-
qualified sanitary engineer, fully trained and experienced in the field of waste dis-
posal. He shall:
(1) Serve as administrative officer and secretary of the Committee and shall
attend all meetings of the Committee, without voting power, and shall
keep an accurate and complete record of all meetings, hearings, cor-
respondence, laboratory studies, and technical work, and shall make
these records available for public inspection at all reasonable times;


143-356


143-356





WATER AND AIR RESOURCES


(2) Review and approve plans, specifications and other such documents as
may be required in connection with applications filed for certificates
of approval, permits, or other documents of approval under the pro-
visions of this article ; and
(3) Perform such other related duties as the Committee or Board of Water
Resources may from time to time direct. (1959, c. 779, s. 4.)
143-357. Transfer of property, records, and appropriations.-(a)
In connection with the transfers made by G. S. 143-354, 143-355 and 143-356 all
records, property, supplies, equipment, personnel, funds, credits, appropriations,
quarterly allotments and executory contracts of the State Board of Water Comris-
sioners, the State Stream Sanitation Committee, the Division of Water Pollution
Control of the State Board of Health and of the affected divisions of the Depart-
ment of Conservation and Development are hereby transferred to the Department
of Water Resources, effective July 1, 1959. In the case of the Division of Water Pol-
lution Control the records transferred shall include, among other things, all plans
and specifications upon the basis of which documents of approval have been issued
under the authority of article 21 of this chapter. The transfers directed by this
subsection shall be made under the supervision of the Governor, and he shall be
the final arbiter of all differences and disputes arising incident to such transfers.
(b) Insofar as practical the expenses necessary to carry out the provisions of
this article shall, during the 1959-1961 biennium, be provided out of appropriations
wade to the presently existing agencies whose functions are to be transferred to
the Department of Water Resources; and in the event additional funds are neces-
sary to carry out the provisions of this article, the Governor, with the approval
of the Council of State, is hereby authorized to appropriate such additional funds
from the Contingency and Emergency Fund.
(c) No transfer of functions to the Department of Water Resources provided
for in this article shall affect any action, suit, proceeding, prosecution, contract,
lease or other transaction involving such a function which was initiated, under-
taken or entered into prior to or pending the time of the transfer, but (except in
the case of the Stream Sanitation Committee) the Department shall be substituted
for the agency from which the function was transferred and so far as practicable the
procedure provided for in this article shall be employed in completing or disposing
of the matter. (1959, c. 779, s. 5.)
143-358. Cooperation of State officials and agencies.-All State
agencies and officials shall cooperate with and assist the State Board of Water Re-
sources in enforcing and carrying out the provisions of this article and the rules,
regulations and policies adopted by the Board pursuant thereto. (1959, c. 779, s.
6.)
143-359. Biennial reports of Board of Water Resources.-The
Board shall file with the Governor and the General Assembly a biennial report
summarizing the activities of the Department for the preceding two years and rec-
ommending changes deemed necessary in laws, policies and administrative organi-
zation for a more beneficial use of the State's water resources. (1959, c. 779, s. 7.)
ARTICLE 43.
North Carolina Seashore Commission.
143-384. Commission created; members; chairman.-There is here-
by created a commission to be known as the "North Carolina Seashore Commis-
sion," to consist of twenty members and a chairman, all of whom shall be appointed
by the Governor, and ex officio members as hereinafter set forth. (1963, c. 989,
s. 2.)
Editor's Note.-The act adding this ar-
ticle became effective Aug. 31, 1963.
78


143-357


143-384





NORTH C.\RC.IN. SEASHORE COMMISSION


143-385. Appointment and terms; vacancies.-On or before Septem-
ber 1, 1963, the Governor shall appoint twenty members of the original Commis-
sion, ten to serve for two (2) years, and ten to serve for four (4) years, and as the
terms of these commissioners expire, the Governor shall thereafter appoint mem-
bers of the Commission to serve for terms of four(4) years. Members of the Com-
mission shall be eligible for reappointment. The Governor shall accept the resig-
nation of nmem! ers, and shall appoint members to serve the unexpired terms caused
by reignaltionl or death of any of the members of the Commission. Terms of the
original members shall commence on September 1, 1963, and members shall con-
tinue to hold office until their successors are appointed and qualified. The Governor
shall appoint a chairman of the Commission to serve at the pleasure of the Gov-
ernor. (1963, c. 989, s. 3.)
143-386. Vice-chairman; secretary; meetings; rules, regulations
and bylaws; quorum.-At its first meeting, the Commission shall elect a vice-
chairman and a secretary. The vice-chairman shall be a member of the Commis-
sion, but the secretary need not but may be a member of the Commission. The
Commission shall meet upon call of the chairman, and shall adopt such rules, regu-
lations, and bylaws governing its operation as it shall deem necessary. Twelve mem-
bers of the Commission shall constitute a quorum for the transaction of business.
(1963, c. 989, s. 4.)
143-387. Ex officio members.-Ex officio members to advise, assist and
help coordinate matters in which the Commission is concerned, shall include the
following: The chairman, Board of Water Resources; the Property Control Officer
of the Department of Administration; the Director, North Carolina Recreation
Commission; a member of the Wildlife Resources Commission; a member of the
State Highway Conmmission; the chairman of the State Parks Committee, of the
Board of Co nservation and Development; the Director of North Carolina Civil De-
fense. (1963, c. 989, s. 5.)
143-388. Powers and duties.-The Commission shall have the duty, au-
thority and responsibility to:
(1) Assist in the development of plans to achieve preservation of the shore
line of the State of North Carolina;
(2) Assist in the sound development of the seacoast areas of the State, giving
emphasis to the advancement and development of the travel attractions
and facilities for accommodating travelers in these areas;
(3) Assist in planning, promoting and developing recreational and industrial
developments in these areas, with emphasis upon making the seashore
areas of North Carolina attractive to visitors and to permanent resi-
dents ;
(4) Coordinate the activities of local governments, agencies of the State and
agencies of the federal government in planning and development of the
seacoast areas for the purpose of attracting visitors and new industrial
growth, and to develop and implement plans for preservation of the
coastal areas of North Carolina.
It shall be the duty of the Commission to study the development of the seacoast
areas and to recommend policies which will promote preservation of the seacoast,
and development of the coastal area, with particular emphasis upon the develop-
ment of the scenic and recreational resources of the seacoast. It shall advise and
confer with various interested individuals, organizations and agencies which are
interested in development of the seacoast area and shall use its facilities and efforts
in planning, developing, and carrying out overall prograIms for the development
of the area as a whole. It shall act as liaison bet\.e en agencies of the State, local
79


143-3S5


143-388




143-389 WATER AND AIR RESOURCES 146-6.1

government, and agencies of the federal government concerned with development
of the seacoast region. (1963, c. 989, s. 6.)
143-389. Reports; recommendations and suggestions. -The Com-
mission shall make an annual report to the Governor covering its work during the
preceding twelve (12) months, and shall make such other reports as the Governor
may request from time to time. It shall file such recommendations or suggestions
as it may deem proper with other agencies of the State, local, or federal govern-
ments. (1963, c. 989, s. 7.)
143-390. Expenses and per diem.-The members of the Commission
shall receive their necessary travel and subsistence expense, at the rate being cur-
rently paid to other State boards and commissions, and shall receive a per diem
of seven dollars ($7.00) per day for each day engaged in official duties of the Com-
mission. All such expenses of the Commission shall be paid from the Contingency
and Emergency Fund upon application in the manner prescribed in G. S. 143-12.
(1963, c. 989, s. 8.)
143-391. Board of Water Resources to provide staff assistance
and facilities.-The Board of Water Resources shall provide staff assistance and
facilities as may be necessary in carrying out the provisions of this article. (1963,
c. 989, s. 9.)


Chapter 146.
State Lands.

SUBCHAPTER I. UNALLOCATED
STATE LANDS.
Article 2.
Dispositions.
Sec.
146-6.1. Protection of marshes and tide-
lands.

SUBCHAPTER I. UNALLOCATED STATE LANDS.

ARTICLE 2.
Dispositions.
146-6.1. Protection of marshes and tidelands.-(a) Any person,
firm, or corporation owning, leasing, or otherwise being in possession of power-
operated earth moving equipment operating or to be operated in or on publicly
owned tidelands, publicly owned beaches, publicly owned marsh lands, or navi-
gable waters within the State shall register the same with the Department of Water
Resources on or before October 1, 1967. Registration as herein provided shall also
be required for power-operated equipment used in projects of hauling and placing
materials of any sort in areas below the mean high tide. As used herein, the term
power-operated earth moving equipment shall include, but not be limited to,
dredges, draglines, bulldozers, motor graders, trucks and like equipment. Un-
registered equipment may be used to supplement registered equipment in construc-
tion of approved projects.
(b) A registration number shall be assigned to each machine registered, which
number shall be displayed in letters not less than six inches high on the top and
side of each machine.





MARSHES AND TIDELANDS


(c) Registration of equipment as provided herein shall be renewed annually. A
fee of three dollars ($3.00) shall be charged for the registration of each machine,
and a fee of three dollars ($3.00) shall be charged for each annual renewal. Reve-
nue from registration fees shall be applied to the cost of administering this sec-
tion, including, but not limited to, the employment of personnel and the purchase
and operation of equipment and supplies.
(d) Any change of ownership of equipment registered under this section,
whether by lease, sale, or other disposition shall be reported in writing to the De-
partment of Water Resources or its successor, which report shall include the name
and address of the person, firm or corporation to whom the transfer is made, and
such person, firm or corporation shall within 10 days from the date of transfer,
register such equipment with the Department of Water Resources as heretofore
set forth.
(e) Nothing contained herein shall be construed to prevent use of any and all
equipment for emergency use in repairing damage caused by hurricanes or like
catastrophe, whether or not such equipment is registered and a permit issued as
herein provided.
(f) The Department of Water Resources or its successor shall be responsible for
the administration of this section.
(g) This section shall apply to all persons, firms, or corporations owning or
operating earth moving equipment in publicly owned tidelands, publicly owned
marsh lands and navigable waters within the State, excepting, however, equipment
owned by the United States of America, the State of North Carolina or political
subdivision thereof.
(h) Any person, firm, or corporation violating the provisions of this section shall
be guilty of a misdemeanor.
(i) Any person, firm, or corporation aggrieved by any decision rendered under
the provisions of this section may appeal therefrom as provided by chapter 143,
article 33 of the General Statutes of North Carolina. (1967, c. 907.)


146-6.1


146-6.1












Index


CREEKS.
Waters and Watercourses, 77-1 to 77-
14.
See Waters and Watercourses.
DAM SAFETY LAW.
Alteration.
Requirements, 143-215.27.
Appeals.
Judicial review, 143-215.33.
Application.
Action by board, 143-215.28.
Citation.
Short title, 143-215.23.
Construction.
Application, 143-215.26.
Action by board, 143-215.28.
Approval.
Certification of final approval, 143-
215.30.
Modification during work, 143-215.-
29.
Requirements, 143-215.26.
Damages.
Liability for damages, 143-215.35.
Definitions, 143-215.25.
Engineers.
Employment of consultants, 143-
215.34.
Supervise by qualified engineers,
143-215.29.
Inspections.
By board, 143-215.32.
Right of investigation, entry, access
and inspection, 143-215.37.
Investigations.
By department, 143-215.34.
Right of investigations, 143-215.37.
Maintenance and Operation.
Supervision over, 143-215.31.
Minimum Stream Flow.
Defined, 143-215.25.
Safe guard, 143-215.31.
Notice.
Board notice as to modification dur-
ing work, 143-215.29.
Completion, 143-215.30.
Penalties.
Violations, 143-215.36.
Purpose.
Declaration of purpose, 143-215.24.
Removal.
Requirements, 143-215.27.
Repairs.
Requirements, 143-215.27.


DAM SAFETY LAW-Cont'd
Reports.
From supervisoring engineer, 143-
215.29.
Right of Entry.
Generally, 143-215.37.
Rules and Regulations.
By board, 143-215.34.
Standards.
Discretion of board, 143-215.31.
Supervision.
Maintenance and operation of dams,
143-215.31.
Violations.
Penalties, 143-215.36.
HEALTH.
Water and Sewer Sanitation.
Control and examination of waters.
Board of health, 130-159.
Defiling public water supply, 130-
164.
Eminent domain.
Condemnation of lands for water
supply, 130-162.
Industrial waste.
Discharge, 130-165.
Investigations and inspections.
State health director to employ in-
spectors, etc., 130-157.
Rules and regulations.
Board of health, 130-159, 130-160,
130-163.
Watersheds, 130-163.
Sewage.
Discharge of sewage, 130-165.
Disposal on watersheds, 130-166.
Sanitary sewage disposal, 130-160.
Rules, 130-160.
System, 130-161.
State department of water and air
resources.
Effect of laws applicable to the
sanitary disposal of sewage,
143-215.7.
Suppliers of water.
Protecting purity, 130-158.
Systems of water supply and sewage,
130-161.
Plans submitted, 130-161.
Units.
Sanitary engineering units, 130-
157.
Watersheds.
Rules of state board of health,
130-159, 130-163.
Sanitation, 130-163
Sewage disposal on, 130-166.





84 WATER AND AIR RESOURCES


NORTH CAROLINA SEASHORE
COMMISSION, 143-384 to 143-
391.
See Seashore Commission.
RIVERS.
Waters and Watercourses, 77-1 to 77-
14.
See Waters and Watercourses.

SEASHORE COMMISSION.
Appointment, 143-385.
Bylaws, 143-386.
Chairman, 143-384.
Created, 143-384.
Duties.
Generally, 143-388.
Ex Officio Members, 143-387.
Expenses, 143-390.
Governor.
Appointment, 143-384.
Meetings, 143-386.
Mileage, 143-390.
Number of Members, 143-384.
Per Diem, 143-390.
Powers.
Generally, 143-388.
Quorum, 143-386.
Recommendations, 143-389.
Recreation Commission.
Director.
Member of seashore commission,
143-387.
Reports, 143-389.
Rules and Regulations, 143-386.
Secretary, 143-386.
Staff Assistance and Facilities.
Board of water resources to provide,
143-391.
Suggestions, 143-389.
Terms of Office, 143-385.
Vacancies.
Filling, 143-385.
Vice-Chairman, 143-386.
Wildlife Resources Commission.
Member of seashore commission,
143-387.

SEWERS.
Water and Sewer Sanitation, 130-157
to 130-166.
See Health.

TAXATION.
Assessment.
Air cleaning devices, waste disposal or
water pollution abatement plants,
105-294.
Exemptions.
Air cleaning device or waste treatment
plant, etc.
Personal property, 105-297.
Real property, 105-296.


TAXATION-Cont'd
Franchise Tax.
Credits.
Cost of sewerage or waste treatment
plants, 105-122.
Income Tax.
Deductions.
Sewage or waste treatment plant,
105-147.
WATER AND AIR RESOURCES DE-
PARTMENT, 143-211 to 143-
215.10.
Abatement of Existing Pollution.
General provisions, 143-215.2.
Voluntary action.
Encouragement, 143-215.2.
Voluntary projects, 143-215.2.
Air Cleaning Devices.
Approval, 143-215.2.
Defined, 143-213.
Installation.
Approval, 143-215.2.
Nonvoluntary projects.
Effect of compliance, 143-215.2.
Voluntary project, 143-215.2.
Air Contamination Source.
Defined, 143-213.
Emission control of standards and
classifications, 143-215.
Air Pollution.
Control of new sources of air pollu-
tion, 143-215.1.
Defined, 143-213.
Appeals.
Judicial review, 143-215.5.
Permits.
Denial, modification and revocation.
Right of hearing before board,
143-215.1.
Special orders of board, 143-215.2.
Appropriations.
Transfer, 143-357.
Area of the State.
Defined, 143-213.
Article.
Title of article, 143-215.10.
Attorney General.
Legal adviser to board of water and
air resources, 143-354.
Board of Water and Air Resources.
Administration, 143-214.
Advisory councils.
General provisions, 143-214.
Appointments.
By governor, 143-214.
Attorney general.
Legal adviser, 143-354.
Authority.
Restrictions, 143-215.9.
Chairman.
Designated by governor, 143-214.
Compensation, 143-214.
Composition, 143-214.







INDEX


WATER AND AIR RESOURCES DE-
PARTMENT-Cont'd
Board of Water and Air Resources-
Cont'd
Co-operation of state officials and
agencies, 143-358.
Corporations.
Franchise or privilege tax on do-
mestic or foreign corporations.
Credit for air cleaning device,
waste treatment plant or pollu-
tion abatement equipment,
105-122.
Creation, 143-214.
Dam safety law.
General provisions, 143-215.23 to
143-215.37.
See Dam Safety Law.
Defined, 143-213, 143-350.
Department of conservation and de-
velopment.
Transfer of certain powers, duties
and functions, 143-355.
Director.
Administrative officer for board,
143-214.
Appointment, 143-214.
Assistant director, 143-214.
General provisions, 143-214.
Injunctive relief, 143-215.8.
Qualifications, 143-214.
Discharge of sewage or industrial
waste.
Control.
Regulations, 130-165.
Division of water pollution control,
143-356.
See Waters and Watercourses.
Divisions.
Generally, 143-214.
Duties.
Generally, 143-214.
Ordinary duties, 143-354.
Transfer of certain duties from the
department of conservation and
development, 143-355.
Effective date.
Defined, 143-213.
Emergency.
Compensation for water allocated
during water emergency, 143-
354.
Declaration of water emergency,
143-:34.
Facilities, 143-214.
Funds.
Acceptance and administration of
federal or private funds, 143-214.


WATER AND AIR RESOURCES DE-
PARTMENT-Cont'd
Board of Water and Air Resources-
Cont'd
Hearings, 143-215.4.
Rules of evidence in administrative
proceedings before state agen-
cies, 143-317, 143-318.
Definitions, 143-317.
Official notice.
Rules of evidence official notice,
143-318.
Meetings.
Generally, 143-214.
Notices.
Generally, 143-215.4.
Number of members, 143-214.
Organization, 143-214.
Personnel, 143-214.
Pollution.
Control over discharge of sewage or
industrial waste, 130-165.
Powers.
Auxiliary powers, 143-215.3.
General powers, 143-215.3.
Modified or revoked, 143-214.1.
Ordinary powers, 143-354.
Transfer of powers from the de-
partment of conservation and de-
velopment, 143-355.
Procedure.
General provisions, 143-215.4.
Qualifications, 143-214.
Reports.
Biennial reports, 143-359.
Rights of way.
Temporary rights of way, 143-354.
Compensation, 143-354.
Rules and regulations.
Publication and codification, 143-
215.4.
Seal. 143-215.4.
Seashore commission.
Chairman.
Ex officio members, 143-387.
Sewage.
Pollution.
Control over discharge of sewage
or industrial waste, 130-165.
Special orders.
Appeal, 143-215.2.
Powers as to, 143-215.2.
Procedure, 143-215.2.
Staff assistants and facilities.
Provided by board, 143-391.
Standards and classifications.
Duties of board, 143-214.1.
Taxation, 105-122, 105-147, 105-294,
105-296, 105-297.
See Taxation.
Vacancy.
Filling, 143-214.







WATER AND AIR RESOURCES


WATER AND AIR RESOURCES DE-
PARTMENT-Cont'd
Board of Water and Air Resources-
Cont'd
Water and sewer sanitation.
Plans submitted to board, 130-161.
Water Use Act of 1967.
General provisions, 143-215.11 to
143-215.22.
See Water Use Act.
Well construction act, 87-83 to 87-
96.
See Wells.
Classifications.
Air quality classifications, 143-215.
Proposed adoption, 143-215.
Criteria, 143-214.1.
Final adoption and assignment, 143-
214.1.
Modification or revocation.
Board's power, 143-214.1.
Proposed adoption and assignment,
143-214.1.
Water quality classification, 143-
214.1.
Creation of Department, 143-212.
Declaration of Public Policy, 143-211.
Definitions, 143-213, 143-350.
Department of Conservation and Devel-
opment.
Director of department.
Transfer of certain powers, duties,
functions and responsibilities,
143-355.
Disposal System.
Defined, 143-213.
Division of Water Pollution Control,
143-356.
See Waters and Watercourses.
Duties.
Miscellaneous duties, 143-355.
Transfer of certain duties of depart-
ment of conservation and develop-
ment, 143-355.
Transfer of duties from department of
water resources, 143-215.10.
Emission.
Control standards and classifications
for air contaminant sources, 143-
215.
Defined, 143-213.
Evidence.
Hearings.
Rules of evidence in administrative
proceedings before state agen-
cies, 143-317, 143-318.
Definitions, 143-317.
Official notice.
Rules of evidence official notice,
143-318.
functions to Perform, 143-355.
General Assembly.
Declaration of public policy, 143-211.


WATER AND AIR RESOURCES DE-
PARTMENT-Cont'd
Hearings.
Board procedure, 143-215.4.
Injunctions.
Injunctive relief against violations,
143-215.8.
Navigation.
Investigation of coasts, ports and wa-
terways of state, 143-355.
Notices.
Persons entitled to notice, 143-215.4.
Outlet.
Defined, 143-213.
Penalties.
Violations, 143-215.6.
Permits.
Appeals, 143-215.1.
Application.
Procedure, 143-215.1.
Board's power, 143-215.1.
Hearings, 143-215.1.
Personnel.
Transfer, 143-215.10.
Pollution.
Water and sewer sanitation.
Control over discharge of sewage or
industrial waste, 130-165.
Powers.
Transfer of all powers of department
of water resources, 143-215.10.
Transfer of certain powers of depart-
ment of conservation and develop-
ment, 143-355.
Property.
Transfer, 143-357.
Public Lands.
Protection of marshes and tidelands,
146-6.1.
Public Water Supplies.
Effect of laws applicable to supplies,
143-215.7.
Purpose of Article, 143-352.
Records.
Transfer, 143-215.10, 143-357.
Rules and Regulations.
Publication and codification of board's
rules and regulations, 143-215.4.
Rules of Evidence in Administrative
Proceedings Before State Agencies,
143-317, 143-318.
Definitions, 143-317.
Official notice.
Rules of evidence official notice,
143-318.
Seals and Sealed Instruments.
Board's seal, 143-215.4.
Sewage.
Effect of laws applicable to sanitary
disposal sewage, 143-215.7.
Sewer System.
Defined, 143-213.






INDEX


WATER AND AIR RESOURCES DE-
PARTMENT-Cont'd
Standards.
Air quality standards, 143-215.
Abatement of existing pollution. 8
143-215.2.
Criteria, 143-215.
Final adoption, 143-215.
Proposed adoption, 143-215.
Criteria, 143-214.1.
Defined, 143-213.
Emission control standards.
Abatement of existing pollution,
143-215.2.
Modification or revocation.
Board's powers, 143-214.1.
Water quality standards, 143-214.1.
State Stream Sanitation Committee.
Continuation, 143-356.
Taxation, 105-122, 105-147, 105-294,
105-296, 105-297.
See Taxation.
Treatment Works.
Defined, 143-213.
Violations.
Acts which constitute violations,
143-215.6.
Penalties, 143-215.6.
Waste.
Defined, 143-213.
Waste Treatment Works.
Nonvoluntary projects.
Effect of compliance, 143-215.2.
Voluntary project, 143-215.2.
Water Pollution.
Control of new sources, 143-215.1.
Defined, 143-213.
Waters.
Defined, 143-213.
Watershed.
Abatement of existing pollution, 143-
215.2.
Defined, 143-213.
Water Supply and Sewage Disposal.
Industrial waste.
Control over discharge, 130-165.
Water Use Act of 1967.
General provisions, 143-215.11 to
143-215.22.
See Water Use Act.
Wells.
Construction act, 87-83 to 87-96.
See Wells.
Contractors.
Water well contractors, 87-65 to
87-82.
See Wells
Drilling.
Information.
Additional information to be fur-
nished department, 143-355.
Penalty for violation, 143-355.
Petroleum and minerals excepted
from article, 143-355.


WATER AND AIR RESOURCES DE-
PARTMENT-Cont'd
Wells-Cont'd
Drilling-Cont'd
Registration with department.
Periods, 143-355.
Required, 143-355.
Report of driller.
Copy to be furnished landowner,
143-355.
Samples of cutting, etc., to be fur-
nished department, 143-355.
WATERS AND WATERCOURSES.
Board of Water Resources.
Board of water and air resources,
143-211 to 143-215.10, 143-348 to
143-359.
See Water and Air Resources De-
partment.
Clearing Streams, 77-1 to 77-11. See
within this title, "Commissioners for
Opening and Clearing Streams."
Commissioners for Opening and Clear-
ing Streams, 77-1 to 77-11.
Commissioners to examine streams,
77-3, 77-4.
County commissioners to appoint com-
missioners, 77-1.
Districts, 77-3.
Draws in bridges, 77-10.
Entry upon lands of another to make
repairs, 77-9.
Examination of streams, 77-3, 77-4.
Failure of owner of dam to keep gates,
etc., 77-7.
Flats and appurtenances, 77-2.
Gates and slopes on milldams, 77-4
to 77-7.
Laying off rivers and creeks in dis-
tricts, 77-3.
Passage of fish, 77-3.
Public landings, 77-11.
Repairing breaks, 77-8, 77-9.
Reports, 77-3 to 77-6.
Contractors.
Water well contractors, 87-65 to 87-
82.
See Wells.
Criminal Law.
Failure of owner of dam to keep gates,
etc., 77-7.
Obstructions in streams and drainage
ditches, 77-12 to 77-14.
Dams, 77-3 to 77-7.
Dam Safety Law, 143-215.23 to 143-
215.37.
Department of Conservation and Devel-
opment.
Transfer of certain powers, duties
and functions to department of
water and air resources, 143-355.





WATER AND AIR RESOURCES


WATERS AND WATERCOURSES-
Cont'd
Department of Water Resources.
Water and air resources department,
143-211 to 143-215.10, 143-348
to 143-359.
See Water and Air Resources De-
partment.
Districts.
Rivers and creeks laid off in districts,
77-3.
Draws in Bridges, 77-10.
Easements.
Repairing breaks.
Entry upon lands of another to
make repairs, 77-9.
Emergencies.
Water emergency powers and duties
of the board, 143-354.
Compensation for water allocated
during water emergency, 143-
354.
Examination of Streams, 77-3, 77-4.
Flats and Appurtenances, 77-2.
Gates.
Commissioners to lay off gates, 77-4.
Construction and maintenance, 77-5.
Discontinuance, 77-6.
Failure of owner to keep gates, etc.,
77-7.
Gates discontinued, 77-6.
Health, 130-157 to 130-166.
See Health.
Investigation.
Coasts, ports and waterways by de-
partment, 143-355.
Notice.
Repairing breaks.
Notice before entry upon lands of
another to make repairs, 77-9.
Obstructing.
Commissioners for opening and clear-
ing streams, 77-1 to 77-11. See
within this title, "Commission-rs for
Opening and Clearing Streams."
Drainage ditches, 77-14.
Obstructing fishing, 77-3.
Obstructing streams a misdemeanor,
77-13.
Passage of boats, 77-12.
Streams, 77-14.
Opening Streams, 77-1 to 77-11. See
within this title, "Commissioner- for
Opening and Clearing Streams."
Pollution.
Division of water pollution control,
143-356.
Director.
Duties, 143-356.
Powers, 143-356.
Qualifications, 143-356.
Duties, 143-356.


WATERS AND WATERCOURSES-
Cont'd
Pollution-Cont'd
Division of water pollution control-
Cont'd
Records.
Transfer to department of water
and air resources, 143-357.
State stream sanitation committee.
Division administrative agent of
state stream sanitation commit-
tee, 143-356.
Transfer of powers and duties from
the state board of health, 143-
356.
Transfer of property records and ap-
propriations, 143-357.
Taxation, 105-122, 105-147, 105-294,
105-296, 105-297.
See Taxation.
Water and air resources department,
143-211 to 143-215.10, 143-348
to 143-359.
See Water and Air Resources De-
partment.
Public Landings, 77-11.
Public Officers.
Board of water and air resources.
Co-operation of state officials and
agencies, 143-358.
Records.
Transfer of records, 143-215.10,
143-357.
Repairs.
Entry upon lands of another to make
repairs, 77-9.
Repairing breaks, 77-8.
Reports, 77-3 to 77-6.
Biennial reports of board of water and
air resources, 143-359.
Right of Way.
Board of water and air resources.
Diversion of waters, 143-354.
Riparian Owners.
Water use act.
Law of riparian rights not changed,
143-215.22.
Taxation, 105-122, 105-147, 105-294,
105-296, 105-297.
See Taxation.
Use.
Water Use Act of 1967, 143-215.11
to 143-215.22.
See Water Use Act.
Water Resources.
Department of water and air resources,
143-211 to 143-215.10, 143-348
to 143-359.
See Water and Air Resources De-
partment.
Wells.
Construction act, 87-83 to 87-96.
See Wells.





INDEX


WATERS AND WATERCOURSES-
Cont'd
Wells-Cont'd
Contractors.
Water well contractors, 87-65 to
87-82.
See Wells.
Drilling.
Power of department of water and
air resources, 143-355.
Work on Streams, 77-1 to 77-11.
WATER USE ACT.
Capacity Use Areas.
Declaration of, 143-215.13.
Map or description of boundaries of,
143-215.18.
Permits for water use within capacity
use areas, 143-215.15, 143-215.16.
Regulations within, 143-215.14.
Scope and procedures, 143-215.14.
Citation.
Short title, 143-215.11.
Consumptive Use.
Defined, 143-215.21.
Dam Safety Law, 143-215.23 to 143-
215.37.
See Dam Safety Law.
Definitions, 143-215.21.
Development and Use of Water Re-
sources, 143-215.12.
Fees.
Permits for water use within capacity
use areas, 143-215.16.
Inspections.
Right of investigation, entry and ac-
cess, 143-215.19.
Investigations.
Rights, 143-215.19.
Maps and Plats.
Boundaries of capacity use areas,
143-215.18.
Nonconsumptive Use.
Defined, 143-215.21.
Penalties.
Permits for water use within capacity
use areas.
Violations, 143-215.16.
Violations.
Generally, 143-215.17.
Permits, 143-215.15, 143-215.16.
Purpose.
Declaration of purpose, 143-215.12.
Right of Entry.
Investigation, 143-215.19.
Riparian Rights.
Law not changed, 143-215.22.
Rules and Regulations.
By board, 143-215.20.
Violations.
Penalties, 143-215.16, 143-215.17.
Waters.
Defined, 143-215.21.


WATER WELL CONTRACTORS,
87-65 to 87-82.
See Wells.
WELLS.
Appeals.
Well construction act.
Judicial review, 87-93.
Board of Water Well Contractors,
87-70 to 87-73. See within this title,
"Contractors."
Conflict of Laws.
Well construction act, 87-96.
Construction Act, 87-83 to 87-96.
Citation.
Short title, 87-83.
Conflict with other laws, 87-96.
Definitions, 87-85.
Existing installations, 87-89.
Findings of general assembly, 87-84.
Health.
Conflict with other laws, 87-96.
Hearings.
By board, 87-92.
Procedure, 87-92.
Injunctions.
Violations.
Injunctive relief by director of de-
partment, 87-95.
Inspection.
Right of access, 87-90.
Investigation.
Right of investigation by board,
87-90.
Judicial review.
General provisions, 87-93.
Notice.
Violations, 87-91.
Policy of general assembly, 87-84.
Procedures, 87-87.
Requirements.
General requirements, 87-88.
Right of entry.
Investigation and inspection, 87-90.
Rules and regulations.
Authority to adopt, 87-87.
Scope, 87-86.
Standards.
General standards, 87-88.
Violations.
Injunctive relief, 87-95.
Notice by board, 87-91.
Penalties, 87-94.
Contractors.
Application of article, 87-82.
Board of water well contractor exam-
iners.
Appointment, 37-70.
Compensation, 87-71.
Composition, 87-70.
Creation, 87-70.
Defined, 87-66.





WATER AND AIR RESOURCES


WELLS-Cont'd
Contractors--Cont'd
Board of water well contractor exam-
iners-Cont'd
Expenses.
Administration expenses not to ex-
ceed income, 87-71.
Board members, 87-71.
Holding other office, 87-72.
Meetings, 87-72.
No liability of state, 87-71.
Oaths.
Administration, 87-72.
Organization, 87-72.
Personnel.
Employment and compensation,
87-71.
Quorum, 87-72.
Reports, 87-73.
Rules and regulations, 87-72.
Seal, 87-72.
Term, 87-70.
Vacancies, 87-70.
Citation of article, 87-65.
Criminal law.
Violation of article a misdemeanor,
87-81.
Definitions, 87-66.
Drilling defined, 87-66.
Exemptions.
Individuals excepted from article,
87-67.
Ground water defined, 87-66.
Injunction.
Enjoining of violation of article,
87-81.
Licenses.
Applicants.
Examinations, 87-74.
Qualifications, 87-74.
Contractor working on January 1,
1962, 87-75.
Defined, 87-66.
Display of license required, 87-78.
Examinations, 87-74.
Applicants, 87-74.
Failure to pass examinations, 87-
74.
Expiration, 87-76.
Fees, 87-74, 87-77.
Issuance, 87-74.
Refusal.
Grounds for, 87-79.
Procedure when board refuses to
examine applicant, 87-80.
Renewal, 87-76.
Without examination, 87-76.
Required for contractors, 87-68.
Residents can practice in other coun-
ties, 87-82.
Revocation.
Grounds for, 87-79.


WELLS-Cont'd
Contractors-Cont'd
Licenses-Cont'd
Revocation-Cont'd
Procedure when board revokes
license, 87-80.
Suspension.
Grounds for, 87-79.
Procedure when board suspends
license, 87-80.
Permit.
Required to operate well-drilling rig,
87-69.
Residents can practice in other coun-
ties, 87-82.
Rig permits.
Applicants.
Qualifications, 87-74.
Defined, 87-66.
Display required, 87-78.
Expiration, 87-76.
Fees, 87-77.
Issuance, 87-74.
Renewal, 87-76.
Required, 87-69.
Weatherproof, 87-78.
Short title, 87-65.
Water well defined, 87-66.
Criminal Law.
Water well contractors.
Violation of article a misdemeanor,
87-81.
Definitions.
Well construction act, 87-85.
Drilling.
Contractors, 87-65 to 87-82. See
within this title, "Contractors."
Definition, 87-66.
Drilling rig defined, 87-66.
Permit.
Rig permit.
Defined, 87-66.
Required, 87-69.
Fees.
Water well contractor's license, 87-
77.
Hearings.
Well construction act.
Board of water and air resources,
87-92.
Injunctions.
Water well contractors.
Enjoining of violation of article,
87-81.
Well construction act.
Violations, 87-95.
Inspections.
Well construction act, 87-90.
Licenses.
Contractors, 87-68 to 87-80. See
within this title, "Contractors."





INDEX


WELLS-Cont'd
Notice.
Well construction act.
Violations, 87-91.
Reports.
Board of water Nell contractor exam-
iners, 87 73.
Drilling or constructing wells, 143-
355.
Right of Entry.
Well construction act.
Investigation and inspection, 87-
90.


WELLS-Cont'd
Rules and Regulations.
Board of water well contractor exam-
iners, 87-72.
Well construction act, 87-87.
Seals and Sealed Instruments.
Board of water well contractor exam-
iners, 8I-72.
Standards.
Well construction act, 87-88.
Water Well Contractors, 87-65 to 87-
82. See within this title, "Contractors."




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