GSNC

ARTICLE 1. General Provisions.

Sec.

§ 139-1. Title of Chapter.

This Chapter may be known and cited as the Soil Conservation Districts Law.

History

(1937, c. 393, s. 1.)

Legal Periodicals. - For article, "Introduction to Water Use Law in North Carolina," see 46 N.C.L. Rev. 1 (1967).

For note on disposition of diffused surface waters in North Carolina, see 47 N.C.L. Rev. 205 (1968).

For article, "The Evolution of Modern North Carolina Environmental and Conservation Policy Legislation," see 29 Campbell L. Rev. 535 (2007).

§ 139-2. Legislative determinations, and declaration of policy.

Legislative Determinations. - It is hereby declared, as a matter of legislative determination:
1. The Condition. - The farm, forest and grazing lands of the State of North Carolina are among the basic assets of the State and the preservation of these lands is necessary to protect and promote the health, safety, and general welfare of its people; improper land-use practices have caused and have contributed to, and are now causing and contributing to, a progressively more serious erosion of the farm and grazing lands of this State by wind and water; the breaking of natural grass, plant, and forest cover has interfered with the natural factors of soil stabilization, causing loosening of soil and exhaustion of humus, and developing a soil condition that favors erosion; the topsoil is being blown and washed out of fields and pastures; there has been an accelerated washing of sloping fields; these processes of erosion by wind and water speed up with removal of absorptive topsoil, causing exposure of less absorptive and less protective but more erosive subsoil; failure by any land occupier to conserve the soil and control erosion upon his lands causes a washing and blowing of soil and water from his lands onto other lands and makes the conservation of soil and control of erosion on such other lands difficult or impossible.
2. The Consequences. - The consequences of such soil erosion in the form of soil-blowing and soil-washing are the silting and sedimentation of stream channels, reservoirs, dams, ditches, and harbors; the loss of fertile soil material in dust storms; the piling up of soil on lower slopes, and its deposit over alluvial plains; the reduction in productivity or outright ruin of rich bottomlands by overwash of poor subsoil material, sand, and gravel swept out of the hills; deterioration of soil and its fertility, deterioration of crops grown thereon, and declining acre yields despite development of scientific processes for increasing such yields; loss of soil and water which causes destruction of food and cover for wildlife; a blowing and washing of soil into streams which silts over spawning beds, and destroys water plants, diminishing the food supply of fish; a diminishing of the underground water reserve, which causes water shortages, intensifies periods of drought, and causes crop failures; an increase in the speed and volume of rainfall runoff, causing severe and increasing floods, which bring suffering, disease, and death; impoverishment of families attempting to farm eroding and eroded lands; damage to roads, highways, railways, farm buildings, and other property from floods and from dust storms; and losses in navigation, hydroelectric power, municipal water supply, drainage developments, farming, and grazing.
3. The Appropriate Corrective Methods. - To conserve soil resources and control and prevent soil erosion and prevent floodwater and sediment damages, and further the conservation, utilization, and disposal of water, and the development of water resources it is necessary that land-use practices contributing to soil wastage and soil erosion be discouraged and discontinued, and appropriate soil-conserving land-use practices and works of improvement for flood prevention or the conservation, utilization, and disposal of water and the development of water resources be adopted and carried out. Among the procedures necessary for widespread adoption, are the carrying on of engineering operations such as the construction of terraces, terrace outlets, check-dams, desilting basins, floodwater retarding structures, channel improvements, floodways, dikes, ponds, ditches, and the like; the utilization of strip cropping, lister furrowing, contour cultivating, contour furrowing, farm drainage, land irrigation; seeding and planting of waste, sloping, abandoned, or eroded lands with water-conserving and erosion-preventing plants, trees, and grasses; forestation and reforestation; rotation of crops; soil stabilization with trees, grasses, legumes, and other thick-growing, soil-holding crops; the addition of soil amendments, manurial materials, and fertilizers for the correction of soil deficiencies and to promote increased growth of soil-protecting crops; retardation of runoff by increasing absorption of rainfall; and retirement from cultivation of steep, highly erosive areas and areas now badly gullied or otherwise eroded.
Declaration of Policy. - It is hereby declared to be the policy of the legislature to provide for the conservation of the soil and soil resources of this State, and for the control and prevention of soil erosion, and for the prevention of floodwater and sediment damages, and for furthering the conservation, utilization, and disposal of water, and the development of water resources and thereby to preserve natural resources, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, preserve wildlife, protect the tax base, protect public lands, and protect and promote the health, safety and general welfare of the people of this State.

History

(1937, c. 393, s. 2; 1947, c. 131, s. 1; 1959, c. 781, ss. 2, 3.)

CASE NOTES

Applied in Baucom's Nursery Co. v. Mecklenburg County, 62 N.C. App. 396, 303 S.E.2d 236 (1983).

§ 139-3. Definitions.

Wherever used or referred to in this Chapter, unless a different meaning clearly appears from the context:

"Agency of this State" includes the government of this State and any subdivision, agency, or instrumentality, corporate or otherwise, of the government of the State.
"A qualified voter" includes any person qualified to vote in elections by the people under the Constitution of this State.
"Environmental Management Commission" or "State Environmental Management Commission" means the Environmental Management Commission of the State of North Carolina, or the board, body or commission succeeding to its principal functions, or in whom shall be vested by law the powers herein granted to the said Environmental Management Commission.
"Commission" or "Soil and Water Conservation Commission" means the Soil and Water Conservation Commission created by G.S. 106-840.
"Conservation easement" has the same meaning as provided in G.S. 40A-80.
"District" or "soil and water conservation district" means a governmental subdivision of this State, and a public body corporate and politic, organized in accordance with the provisions of this Chapter, for the purposes, with the powers, and subject to the restrictions hereinafter set forth.
"Due notice" means notice given by posting the same at the courthouse door and at three other public places in the county, including those where it may be customary to post notices concerning county or municipal affairs generally, not less than 10 days before the date of the event of which notice is being given. At any hearing held pursuant to such a notice at the time and place designated in such a notice, adjournment may be made from time to time without the necessity of renewing such notice for such adjourned dates.
"Government" or "governmental" includes the government of this State, the government of the United States, and any subdivision, agency, or instrumentality, corporate or otherwise, of either of them.
The terms "land occupier" or "occupier of land," and "landowner" or "owner of land" include any person, firm or corporation who shall hold title to or shall have contracted to purchase any lands lying within a soil and water conservation district organized under the provisions of this Chapter.
"Nominating petition" means a petition filed under the provisions of G.S. 139-6 to nominate candidates for the office of supervisor of a soil and water conservation district.
Repealed by Session Laws 1993, c. 391, s. 1.
"Petition" means a petition filed under the provisions of Article 1 of this Chapter for the creation of a soil and water conservation district.
"State" means the State of North Carolina.
"Supervisor" means one of the members of the governing body of a district, elected or appointed in accordance with the provisions of this Chapter.
Repealed by Session Laws 1993, c. 391, s. 1.
"United States" or "agencies of the United States" includes the United States of America, the Soil Conservation Service of the United States Department of Agriculture, and any other agency or instrumentality, corporate or otherwise, of the United States of America.
Repealed by Session Laws 1993, c. 391, s. 1.
A "watershed improvement project" means a project of watershed improvement (whether involving flood prevention, drainage improvement, water supply, soil and water conservation, recreation facilities, fish and wildlife habitat, or other related purposes, singly or in combination) which is undertaken:
1. Repealed by Session Laws 1993, c. 391, s. 1.
2. By a soil and water conservation district under the provisions of Article 1 of Chapter 139 of the General Statutes or any local act granting similar powers.
3. By a drainage district under the provisions of Chapter 156 of the General Statutes or any local act granting similar powers.
4. By a county that is carrying out a county watershed improvement program under the provisions of Article 3 of Chapter 139 of the General Statutes or any local act granting similar powers.
5. By any combination of the foregoing, acting as joint sponsors of a watershed improvement program.
6. By any watershed, drainage or flood control project planned or carried out by the Soil Conservation Service, Tennessee Valley Authority or the Army Corps of Engineers.
A "watershed improvement work" means a single feature or facility or portion of a watershed improvement project, such as a water retarding or impoundment structure for one or more authorized watershed purposes or a section of improved stream channel or the land treatment measures associated with a water retarding structure.
"Job approval authority" means the authority granted by the Commission to Soil and Water Conservation District staff or employees of the Division of Soil and Water Conservation of the Department of Agriculture and Consumer Services who have demonstrated the appropriate knowledge, skill, and ability to plan, design, and certify the installation of best management practices approved for cost-share funding pursuant to programs identified in G.S. 139-4(d)(9).

History

(1937, c. 393, s. 3; 1947, c. 131, s. 2; 1959, c. 781, s. 4; 1965, c. 582, s. 1; 1967, c. 987, s. 1; 1971, c. 1138, s. 1A; 1973, c. 1262, s. 38; 1993, c. 391, s. 1; 1995, c. 519, s. 5; 2011-145, s. 13.22A(h); 2011-209, s. 1; 2020-18, s. 7(b).)

Cross References. - As to the Environmental Management Commission, see G.S. 143B-282 et seq.

As to the Soil and Water Conservation Commission, see G.S. 106-840 et seq.

Editor's Note. - Session Laws 1967, c. 987, which amended or added various sections in this Chapter, provides in part:

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

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

Session Laws 2011-209, provides in its preamble: "Whereas, North Carolina is and always has been a leader in soil and water conservation, with the nation's first soil and water conservation district established in Brown Creek, Anson County, under the leadership of Dr. Hugh Hammond Bennett, the 'father of soil conservation' in the United States; and

"Whereas, soil and water conservation districts continue into the 21st century to provide a critical voluntary, nonregulatory means to enhance conservation values of private lands, including much of the State's agricultural and timber lands; and

"Whereas, conservation easements provide an increasingly important way that soil and water conservation districts, along with other units of State and local government and private land trusts, help private landowners conserve important soil and water resources on their property; and

"Whereas, to be effective in the long run, conservation easements require long-term or perpetual monitoring to assure that the intent of the easement donors and sellers is honored; and

"Whereas, soil and water conservation districts receive funds from diverse sources for long-term easement stewardship, including private contributions and donations, portions of transaction fees, donations from private charitable foundations, and contributions from and appropriation of public funds; and

"Whereas, the current local budgeting and finance laws do not adequately provide a means to ensure that these funds are dedicated to long-term or perpetual stewardship of conservation easements; Now, therefore,"

Session Laws 2020-18, s. 16(a), is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 13.22A(h), effective July 1, 2011, substituted "G.S. 106-840" for "G.S. 143B-294" in subdivision (4).

Session Laws 2011-209, s. 1, effective July 1, 2011, added subdivision (4a).

Session Laws 2020-18, s. 7(b), effective June 12, 2020, added subdivision (19).

§ 139-3.1: Repealed by Session Laws 1998-217, s. 14(a), effective October 31, 1998.

Editor's Note. - Session Laws 1998-217, which repealed this section, in s. 14(b) provides: "The repeal of this section shall not be construed to affect any language currently in the General Statutes."

§ 139-4. Powers and duties of Soil and Water Conservation Commission generally.

through (c) Repealed by Session Laws 1973, c. 1262, s. 38.
In addition to the duties and powers hereinafter conferred upon the Soil and Water Conservation Commission, it shall have the following duties and powers:
1. To offer such assistance as may be appropriate to the supervisors of soil and water conservation districts, organized as provided hereinafter, in the carrying out of any of their powers and programs.
2. To keep the supervisors of each of the several districts organized under the provisions of this Chapter informed of the activities and experience of all other districts organized hereunder, and to facilitate an interchange of advice and experience between such districts and cooperation between them.
3. To coordinate the programs of the several soil and water conservation districts organized hereunder so far as this may be done by advice and consultation.
4. To secure the cooperation and assistance of the United States and any of its agencies, and of agencies of this State, in the work of such districts.
5. To disseminate information throughout the State concerning the activities and programs of the soil and water conservation districts organized hereunder, and to encourage the formation of such districts in areas where their organization is desirable.
6. Upon the filing of a petition signed by all of the district supervisors of any one or more districts requesting a change in the boundary lines of said district or districts, the Commission may change such lines in such manner as in its judgment would best serve the interests of the occupiers of land in the area affected thereby.
7. To receive, review and approve or disapprove applications for planning assistance under the provisions of Public Law 566 (83rd Congress, as amended), and recommend priorities on such applications.
8. To supervise and review small watershed work plans pursuant to G.S. 139-41.2 and 139-47.
9. To create, implement, and supervise the Agriculture Cost Share Program for Nonpoint Source Pollution Control created pursuant to Article 72 of Chapter 106 of the General Statutes, the Community Conservation Assistance Program created pursuant to Article 73 of Chapter 106 of the General Statutes, and the Agricultural Water Resources Assistance Program created pursuant to Article 5 of this Chapter.
10. To review and approve or disapprove the application of a district supervisor for a grant under the Agriculture Cost Share Program for Nonpoint Source Pollution Control, the Community Conservation Assistance Program, or the Agricultural Water Resources Assistance Program as provided by G.S. 139-8(b).
11. To develop and implement a program for the approval of water quality and animal waste management systems technical specialists.
12. To develop and approve best management practices for the Agriculture Cost Share Program for Nonpoint Source Pollution Control and for use in water quality protection and water use efficiency, availability, and storage programs and to adopt rules that establish criteria governing approval of these best management practices.
13. To establish a training program required for all district supervisors.
14. To develop and implement a program for granting job approval authority to Soil and Water Conservation District staff and employees of the Division of Soil and Water Conservation of the Department of Agriculture and Consumer Services to plan, design, and certify the installation of best management practices approved for cost-share funding pursuant to programs identified in G.S. 139-4(d)(9).
A member of the Commission may apply for and receive a grant under the Agriculture Cost Share Program for Nonpoint Source Pollution Control, the Community Conservation Assistance Program, or the Agricultural Water Resources Assistance Program if:
1. The member does not vote on the application or attempt to influence the outcome of any action on the application; and
2. The application is approved by the Commissioner of Agriculture.

History

(1937, c. 393, s. 4; 1947, c. 131, s. 3; 1953, c. 255; 1957, c. 1374, s. 1; 1959, c. 781, s. 5; 1961, c. 746, s. 2; 1965, c. 582, s. 2; c. 932; 1971, c. 396; 1973, c. 1262, s. 38; 1981, c. 326, s. 1; 1995, c. 519, s. 1; 1997-443, s. 11A.119(a); 2001-284, s. 1; 2006-78, s. 3; 2011-145, ss. 13.23(c), (d), 13.22A(i), (j); 2012-142, s. 11.6(b); 2012-145, s. 4.3; 2016-113, s. 5(a); 2020-18, s. 7(c).)

State Government Reorganization. - The Soil and Water Conservation Committee (now the Soil and Water Conservation Commission) was transferred to the Department of Natural and Economic Resources (now the Department of Environment and Natural Resources) by former G.S. 143A-124, enacted by Session Laws 1971, c. 864 and repealed by Session Laws 1973, c. 1262, and remained a part of the Department of Environmental Resources under G.S. 143B-279.3(b)(21), until being transferred to the Department of Agriculture and Consumer Services by Session Laws 2011-145, s. 13.22A(a), (b), effective July 1, 2011.

Editor's Note. - Session Laws 2001-355, ss. 1 to 6, as amended by Session Laws 2013-413, s. 57(y), provide for the implementation of the Tar-Pamlico River Basin-Nutrient Sensitive Waters Management Strategy: Agricultural Nutrient Control Strategy, as adopted by the Environmental Management Commission on 12 October 2000 and approved by the Rules Review Commission on 20 November 2000, to become effective on 1 September 2001. A Local Advisory Committee is to be appointed in each county or watershed, as specified in the Basin Oversight Committee, within the Tar-Pamlico River Basin; these committees terminate upon a finding by the Environmental Management Commission that the long-term maintenance of nutrient loads is assured. Under the act, the Soil and Water Commission is to approve best management practices for pasture-based production or management of livestock, including a point system applicable thereto. Harvesting of trees is also addressed. Furthermore, the Basin Oversight Committee is to develop a nutrient loading accounting methodology, to be approved by the Environmental Management Commission no later than 1 March 2003. The Environmental Management Commission may adopt and revise a temporary rule incorporating the provisions of the act until a permanent rule can be adopted. Session Laws 2001-355, s. 7, provides that ss. 2 and 3 of the act expire when the temporary rule becomes effective, and s. 4 expires upon a finding that the long-term maintenance of nutrient loads in the Tar-Pamlico River Basin is assured. Session Laws 2017-10, s. 3.9, repealed Session Laws 2001-355, s. 4, effective May 4, 2017.

In subdivision (d)(9) above, "Article 73 of Chapter 106" was substituted for "Part 11 of Article 21 of Chapter 143" to conform to the recodification of Part 11 of Article 21 of Chapter 143 as Article 73 of Chapter 106 by Session Laws 2011-145, s. 13.22A(x).

Session Laws 2011-145, s. 13.22A(dd), provides: "The Revisor of Statutes shall make the conforming statutory changes necessary to reflect the transfers under subsections (a) and (b) of this section. The Revisor of Statutes may correct any reference in the General Statutes to the statutes that are recodified by this section and any other conforming changes necessitated by this section."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2017-10, s. 5.1, is a severability clause.

Session Laws 2020-18, s. 16(a), is a severability clause.

Effect of Amendments. - Session Laws 2006-78, s. 3, effective July 10, 2006, rewrote subdivision (d)(9); in subdivision (d)(10), inserted "or the Community Conservation Assistance Program," and substituted "139-8(b)" for "139-8(13)"; and added "and the Community Conservation Assistance Program" near the end of subsection (e).

Session Laws 2011-145, s. 13.22A(i), (j), effective July 1, 2011, substituted "Article 72 of Chapter 106" for "Part 9 of Article 21 of Chapter 143" in subdivision (d)(9); inserted "the Agriculture Cost Share Program for Nonpoint Source Pollution Control and for" in subdivision (d)(12); and substituted "Commissioner of Agriculture" for "Secretary of Environment and Natural Resources" in subdivision (e)(2).

Session Laws 2011-145, s. 13.23(c), (d), effective July 1, 2011, in subdivision (d)(9), added "and the Agricultural Water Resources Assistance Program created pursuant to Article 5 of this Chapter" and made a minor stylistic change; and in subdivision (d)(10); and in subsection (e), inserted "or the Agricultural Water Resources Assistance Program" and made minor stylistic changes.

Session Laws 2012-142, s. 11.6(b), as added by Session Laws 2012-145, s. 4.3, effective July 1, 2012, substituted "water quality protection and water use efficiency, availability, and storage programs" for "the water quality protection programs of the Department of Environment and Natural Resources" in subdivision (d)(12).

Session Laws 2016-113, s. 5(a), effective July 26, 2016, added subdivision (d)(13).

Session Laws 2020-18, s. 7(c), effective June 12, 2020, added subdivision (d)(14).

§ 139-5. Creation of soil and water conservation districts.

Any 25 occupiers of land lying within the limits of the territory proposed to be organized into a district may file a petition with the Soil and Water Conservation Commission asking that a soil and water conservation district be organized to function in the territory described in the petition. Such petition shall set forth:
1. The proposed name of said district.
2. That there is need, in the interest of the public health, safety, and welfare, for a soil and water conservation district to function in the territory described in the petition.
3. A description of the territory proposed to be organized as a district, which description shall not be required to be given by metes and bounds or by legal subdivisions, but shall be deemed sufficient if generally accurate.
4. A request that the Soil and Water Conservation Commission duly define the boundaries for such districts; that a referendum be held within the territory so defined on the question of the creation of a soil and water conservation district in such territory; and that the Commission determine that such a district be created.
Within 30 days after such a petition has been filed with the Soil and Water Conservation Commission, it shall cause due notice to be given of a proposed hearing upon the question of the desirability and necessity, in the interest of the public health, safety, and welfare, of the creation of such districts, upon the question of the appropriate boundaries to be assigned to such district, upon the propriety of the petition and other proceedings taken under this Chapter, and upon all questions relevant to such inquiries. All occupiers of land within the limits of the territory described in the petition, and of lands within any territory considered for addition to such described territory, and all other interested parties, shall have the right to attend such hearings and to be heard. If it shall appear upon the hearing that it may be desirable to include within the proposed district territory outside the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of further hearing shall be given throughout the entire area considered for the inclusion of the district, and such further hearing held. After such hearing, if the Commission shall determine, upon the facts presented at such hearing and upon such other relevant facts and information as may be available, that there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the territory considered at the hearing, it shall make and record such determination, and shall define, by metes and bounds or by legal subdivisions, the boundaries of such district. In making such determination and in defining such boundaries, the Commission shall give due weight and consideration to the topography or the area considered and of the state and composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions, and to other soil and water conservation districts already organized or proposed for organization under the provisions of this Chapter, and such other physical, geographical and economic factors as are relevant, having due regard to the legislative determination set forth in G.S. 139-2. The territory to be included within such boundaries need not be contiguous. If the Commission shall determine after such hearing after due consideration of the said relevant facts, that there is no need for a soil and water conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall deny the petition. After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as aforesaid and new hearings held and determinations made thereon.
After the Commission has made and recorded a determination that there is need, in the interest of the public health, safety and welfare for the organization of a district in a particular territory and has defined the boundaries thereof, it shall consider the question whether the operation of a district within such boundaries with the powers conferred upon soil and water conservation districts in this Chapter is administratively practicable and feasible. To assist the Commission in the determination of such administrative practicability and feasibility, it shall be the duty of the Commission, within a reasonable time after entry of the finding that there is need for the organization of the proposed district and the determination of the boundaries thereof, to hold a referendum within the proposed district upon the proposition of the creation of the district, and to cause due notice of such referendum to be given. The question shall be submitted by ballots upon which the words "For creation of a soil and water conservation district of the lands below described and lying in the county(ies) of ________, ________ and ________." and "Against creation of a soil and water conservation district of the lands below described and lying in the county(ies) of ______________ and ______________." shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose creation of such district. The ballot shall set forth the boundaries of such proposed district as determined by the Commission. All occupiers of land lying within the boundaries of the territory, as determined by the Soil and Water Conservation Commission, shall be eligible to vote in such referendum. Only such land occupiers shall be eligible to vote.
The Department of Agriculture and Consumer Services shall pay all expenses for the issuance of such notices and the conduct of such hearings and referenda, and shall supervise the conduct of such hearings and referenda. It shall issue appropriate regulations governing the conduct of such hearings and referenda, and providing for the registration prior to the date of the referendum of all eligible voters, or prescribing some other appropriate procedure for the determination of those eligible as voters in such referendum. No informality in the conduct of such referendum or in any matters relating thereto shall invalidate said referendum or the result thereof if notice thereof shall have been given substantially as herein provided and said referendum shall have been fairly conducted.
The Department of Agriculture and Consumer Services shall publish the results of such referendum and shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the Commission shall determine that the operation of such district is not administratively practicable and feasible, it shall record such determination and deny the petition. If the Commission shall determine that the operation of such district is administratively practicable and feasible, it shall record such in the manner hereinafter provided. In making such determination the Commission shall give due regard and weight to the attitudes of the occupiers of lands lying within the defined boundaries, the number of land occupiers eligible to vote in such referendum who shall have voted, the proportion of the votes cast in such referendum in favor of the creation of the district to the total number of votes cast, the approximate wealth and income of the land occupiers of the proposed district, the probable expense of carrying on erosion control operations within such district, and such other economic and social factors as may be relevant to such determination, having due regard to the legislative determination set forth in G.S. 139-2: Provided, however, that the Commission shall not have authority to determine that the operations of the proposed district within the defined boundaries is administratively practicable and feasible unless at least a majority of the votes cast in the referendum upon the proposition of creation of the district shall have been cast in favor of the creation of such district.
If the Commission shall determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible, it shall appoint two temporary supervisors to act as the governing body of the district, who shall serve until supervisors are elected or appointed and qualify as provided in G.S. 139-6 and 139-7. Such district shall be a governmental subdivision of this State and a public body corporate and politic, upon the taking of the following proceedings:
1. That a petition for the creation of the district was filed with the Soil and Water Conservation Commission pursuant to the provisions of this Chapter and that the proceedings specified in this Chapter were taken pursuant to such petition; that the application is being filed in order to complete the organization of the district as a governmental subdivision and public body, corporate and politic under this Chapter; and that the Commission has appointed them as supervisors;
2. The name and official residence of each of the temporary supervisors, together with a certified copy of the appointment evidencing their right to office;
3. The name which is proposed for the district; and
4. The location of the principal office of the supervisors of the district.
After six months shall have expired from the date of entry of a determination by the Soil and Water Conservation Commission that operation of a proposed district is not administratively practicable and feasible, and denial of a petition pursuant to such determination, subsequent petitions may be filed as aforesaid, and action taken thereon in accordance with the provisions of this Chapter.
Petitions for including additional territory within an existing district may be filed with the Soil and Water Conservation Commission, and the proceedings herein provided for in the case of petitions to organize a district shall be observed in the case of petitions for such inclusions. The Commission shall prescribe the form for such petitions, which shall be as nearly as may be in the form prescribed in this Chapter for petitions to organize a district. Where the total number of land occupiers in the area proposed for inclusion shall be less than 25, the petition may be filed when signed by two thirds of the occupiers of such area, and in such case no referendum need be held. In referenda petitions for such inclusion, all occupiers of land lying within the proposed additional area shall be eligible to vote.
In any suit, action or proceeding involving the validity or enforcement of, or relating to any contract, proceeding or action of the district, the district shall be deemed to have been established in accordance with the provisions of this Chapter upon proof of the issuance of the aforesaid certificate by the Secretary of State. A copy of such certificate duly certified by the Secretary of State shall be admissible in evidence in any such suit, action, or proceeding and shall be proof of the filing and contents thereof.

Where more than one petition is filed covering parts of the same territory, the Soil and Water Conservation Commission may consolidate all or any such petitions.

Town or village lots or government-owned or controlled lands may be included within the boundaries of any district. As used in this subsection: The term "government-owned or controlled land" includes land owned or controlled by any governmental agency or subdivision, federal, State or local; and the term "town and village lots" means parcels or tracts on which no agricultural operations are conducted, or (being less than three acres in extent) whose production of agricultural products for home use or for sale during the immediately preceding calendar year was of less than two hundred and fifty dollars ($250.00) in value. This section applies to existing soil and water conservation districts as well as districts that may hereafter be formed. Insofar as it applies to existing districts it is intended to be declaratory of the present boundaries of such districts as defined by other charters.

The two appointed temporary supervisors shall present to the Secretary of State an application signed by them which shall set forth (and such application need contain no detail other than the mere recitals):

The application shall be subscribed and sworn to by each of the said temporary supervisors before an officer authorized by the laws of this State to take and certify oaths, who shall certify upon the application that he personally knows the temporary supervisors and knows them to be the officers as affirmed in the application, and that each has subscribed thereto in the officer's presence. The application shall be accompanied by a statement by the Soil and Water Conservation Commission, which shall certify (and such statement need contain no detail other than the mere recitals) that a petition was filed, notice issued, and hearing held as aforesaid, that the Commission did duly determine that there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the proposed territory and did define the boundaries thereof; that notice was given and a referendum held on the question of the creation of such district, and that the result of such referendum showed a majority of the votes cast in such referendum to be in favor of the creation of the district; that thereafter the Commission did duly determine that the operation of the proposed district is administratively practicable and feasible. The said statement shall set forth the boundaries of the district as they have been defined by the Commission.

The Secretary of State shall examine the application and statement and, if he finds that the name proposed for the district is not identical with that of any other soil and water conservation district of this State or so nearly similar as to lead to confusion or uncertainty, he shall receive and file them and shall record them in an appropriate book of record in his office. If the Secretary of State shall find that the name proposed for the district is identical with that of any other soil and water conservation district of this State, or so nearly similar as to lead to confusion and uncertainty, he shall certify such fact to the Soil and Water Conservation Commission, which shall thereupon submit to the Secretary of State a new name for the said district, which shall not be subject to such defects. Upon receipt of such new name, free of such defects, the Secretary of State shall record the application and statement, with the name so modified, in an appropriate book of record in his office. When the application and statement have been made, filed and recorded, as herein provided, the district shall constitute a governmental subdivision of this State and a public body corporate and politic. The Secretary of State shall make and issue to the said supervisors a certificate, under the seal of the State, of the due organization of the said district, and shall record such certificate with the application and statement. The boundaries of such district shall include the territory as determined by the Soil and Water Conservation Commission as aforesaid, but in no event shall they include any area included within the boundaries of another soil and water conservation district organized under the provisions of this Chapter.

History

(1937, c. 393, s. 5; 1947, c. 131, s. 4; 1959, c. 781, s. 6; 1965, c. 582, s. 3; 1973, c. 1262, s. 38; 1977, c. 771, s. 4; 1989, c. 727, s. 218(91); 1997-443, s. 11A.119(a); 2011-145, s. 13.22A(k), ( l ).)

Effect of Amendments. - Session Laws 2011-145, s. 13.22A(k), ( l ), effective July 1, 2011, in the first sentence of subsections (d) and (e), substituted "Department of Agriculture and Consumer Services" for "Department of Environment and Natural Resources."

§ 139-6. District board of supervisors - elective members; certain duties.

After the issuance of the certificate of organization of the soil and water conservation district by the Secretary of State, an election shall be held in each county of the district to elect the members of the soil and water conservation district board of supervisors as herein provided.

The district board of supervisors shall consist of three elective members to be elected in each county of the district, and that number of appointive members as provided in G.S. 139-7. Upon the creation of a district, the first election of the members shall be held at the next succeeding election for county officers.

All elections for members of the district board of supervisors shall be held at the same time as the regular election for county officers beginning in November 1974. The election shall be nonpartisan and no primary election shall be held. The election shall be held and conducted by the county board of elections.

Candidates shall file their notice of candidacy on forms prescribed by the county board of elections. The notice of candidacy must be filed no earlier than noon on the second Monday in June and no later than noon on the first Friday in July preceding the election. The candidate shall pay a filing fee of five dollars ($5.00) at the time of filing the notice of candidacy.

Beginning with the election to be held in November 1974, the two candidates receiving the highest number of votes shall be elected for a term of four years, and the candidate receiving the next highest number of votes shall be elected for a term of two years; thereafter, as their terms expire, their successors shall be elected for terms of four years. If the position of district supervisor is not filled by failure to elect, then the office shall be deemed vacant upon the expiration of the term of the incumbent, and the office shall be filled as provided in G.S. 139-7.

The persons elected in 1974 and thereafter shall take office on the first Monday in December following their election.

The terms of the present members of the soil and water conservation districts, both elective and appointive members, are hereby extended to or terminated on the first Monday in December 1974.

All qualified voters of the district shall be eligible to vote in the election. Except as provided in this Chapter, the election shall be held in accordance with the applicable provisions of Articles 23 and 24 of Chapter 163 of the General Statutes.

The district board of supervisors, after the appointment of the appointive members has been made, shall select from its members a chairman, a vice-chairman and a secretary. It shall be the duty of the district board of supervisors to perform those powers, duties, and authority conferred upon supervisors under this Chapter; to develop annual county and district goals and plans for soil conservation work therein; to request agencies, whose duties are such as to render assistance in soil and water conservation, to set forth in writing what assistance they may have available in the county and district.

History

(1937, c. 393, s. 6; 1947, c. 131, s. 5; 1949, c. 268, s. 1; 1957, c. 1374, s. 2; 1963, c. 815; 1973, c. 502, s. 1; 1975, c. 798, s. 4; 1979, c. 519, s. 1; 1981, c. 560, s. 3; 2002-159, s. 55(h); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted "Article 27 of Chapter 163A" for "Articles 23 and 24 of Chapter 163" in the next to the last undesignated paragraph.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

§ 139-7. District board of supervisors - appointive members; organization of board; certain powers and duties.

The governing body of a soil and water conservation district shall consist of the three elective supervisors from the county or counties in the district, together with the appointive members appointed by the Soil and Water Conservation Commission pursuant to this section, and shall be known as the district board of supervisors. When a district is composed of less than four counties, the board of supervisors of each county shall on or before October 31, 1978, and on or before October 31 as the terms of the appointive supervisors expire, recommend in writing two persons from the district to the Commission to be appointed to serve with the elective supervisors. If the names are not submitted to the Commission as required, the office shall be deemed vacant on the date the term is set to expire and the Commission shall appoint two persons of the district to the district board of supervisors to serve with the elected supervisors. The Commission shall make its appointments prior to or at the November meeting of the Commission. Appointive supervisors shall take office on the first Monday in December following their appointment. Such appointive supervisors shall serve for a term of four years, and thereafter, as their terms expire, their successors shall serve for a term of four years. The terms of office of all appointive supervisors who have heretofore been lawfully appointed for terms the final year of which presently extends beyond the first Monday in December are hereby terminated on the first Monday in December of the final year of appointment. Vacancies for any reason in the appointive supervisors shall be filled for the unexpired term by the appointment of a person by the Commission from the district in which the vacancy occurs. Vacancies for any reason in the elected supervisors shall be filled for the unexpired term by appointment by the Commission of a person from the county in the district in which the vacancy occurs.

In those districts composed of four or more counties, the Commission may, but is not required to, appoint two persons from the district without recommendation from the board of supervisors, to serve as district supervisors along with the elected members of the board of supervisors. Such appointments shall be made at the same time other appointments are made under this section, and the persons appointed shall serve for a term of four years.

The supervisors shall designate a chairman and may, from time to time, change such designation. A simple majority of the board shall constitute a quorum for the purpose of transacting the business of the board, and approval by a majority of those present shall be adequate for a determination of any matter before the board, provided at least a quorum is present. Supervisors of soil and water conservation districts shall be compensated for their services at the per diem rate and allowed travel, subsistence and other expenses, as provided for State boards, commissions and committees generally, under the provisions of G.S. 138-5; provided, that when per diem compensation and travel, subsistence, or other expense is claimed by any supervisor for services performed outside the district for which such supervisor ordinarily may be appointed or elected to serve, the same may not be paid unless prior written approval is obtained from the Department of Agriculture and Consumer Services.

The supervisors may employ a secretary, technical experts, whose qualifications shall be approved by the Department, and such other employees as they may require, and shall determine their qualifications, duties and compensation. The supervisors may call upon the Attorney General of the State for such legal services as they may require. The supervisors may delegate to their chairman, to one or more supervisors, or to one or more agents, or employees such powers and duties as they may deem proper. The supervisors shall furnish to the Soil and Water Conservation Commission, upon request, copies of such ordinances, rules, regulations, orders, contracts, forms, and other documents as they shall adopt or employ, and such other information concerning their activities as it may require in the performance of its duties under this Chapter.

The supervisors shall provide for the execution of surety bonds for all employees and officers who shall be entrusted with funds or property; shall provide for the keeping of a full and accurate record of all proceedings and of all resolutions, regulations, and orders issued or adopted; and shall provide for an annual audit of the accounts of receipts and disbursements. In any given year, if the supervisors provide for an internal audit, and the supervisor serving as chairman certifies, under oath, that this internal audit is a true and accurate reflection of the accounts of receipts and disbursements, then the supervisors shall not be required, notwithstanding the provisions of G.S. 159-34, to provide for an audit of the accounts of receipts and disbursements by a certified public accountant or by an accountant certified by the Local Government Commission. Any supervisor may be removed by the Soil and Water Conservation Commission upon notice and hearing, for neglect of duty, incompetence or malfeasance in office, but for no other reason.

The supervisors may invite the legislative body of any municipality or county located near the territory comprised within the district to designate a representative to advise and consult with the supervisors of the district on all questions of program and policy which may affect the property, water supply, or other interests of such municipality or county.

History

(1937, c. 393, s. 7; 1943, c. 481; 1947, c. 31, ss. 6, 7; 1957, c. 1374, s. 3; 1963, c. 563; 1973, c. 502, s. 2; c. 1262, s. 38; 1977, c. 387; c. 771, s. 4; 1979, c. 519, s. 2; 1981, c. 330; 1989, c. 66, s. 1; c. 727, s. 218(92); 1991, c. 689, s. 166; 1997-443, s. 11A.119(a); 2011-145, s. 13.22A(m).)

Effect of Amendments. - Session Laws 2011-145, s. 13.22A(m), effective July 1, 2011, substituted "Department of Agriculture and Consumer Services" for "Department of Environment and Natural Resources" at the end of the third paragraph; and deleted the former last paragraph.

§ 139-7.1. Special revenue funds for the maintenance of conservation easements.

Establishing Fund. - The governing body of a soil and water conservation district may establish and maintain a special revenue fund for the purpose of maintaining conservation easements, including maintenance activities such as travel to and observation of easement property, remote monitoring of easement property, and education and ongoing communication with landowners about their easement responsibilities. To establish a special revenue fund under this section, the governing body of a soil and water conservation district shall adopt a resolution or ordinance that includes all of the following provisions:
1. The specific purposes of maintaining conservation easements for which the special revenue fund is created.
2. The approximate periods of time during which the moneys are to be accumulated for each purpose specified under subdivision (1) of this subsection.
3. The approximate amounts to be accumulated for each purpose specified under subdivision (1) of this subsection.
4. The sources from which moneys will be derived for each purpose specified under subdivision (1) of this subsection.
Changes Authorized. - The resolution or ordinance that establishes a special revenue fund under subsection (a) of this section may be amended from time to time in the same manner in which it was adopted. Such amendments may authorize the use of moneys in the special revenue fund for conservation easement maintenance purposes that are not previously provided for by resolution or ordinance.
Funding. - Any special revenue fund established under this section shall consist of funds received by appropriation from any other fund consistent with the limitations under G.S. 159-13(b); grant moneys; donations; direct appropriations from the State or any of its agencies or political subdivisions; or any other unrestricted funds appropriated to a soil and water conservation district from any source. When the conservation easement maintenance fund receives moneys or investment securities, the use of which is restricted by law, the identity of such moneys or investment securities shall be maintained by appropriate accounting entries.
Investment of Fund. - All or any part of the cash balances of a special revenue fund established under this section may be deposited at interest or invested as provided by G.S. 159-30.
Fund Withdrawals When District Adopts Its Own Budget Ordinance. - Withdrawals from a special revenue fund established under this section may be authorized by resolution or ordinance of the governing body of the soil and water conservation district. No withdrawal may be authorized unless it is for a purpose that is specified in the resolution or ordinance under subsection (a) of this section or in a resolution or ordinance under subsection (b) of this section. The resolution or ordinance to authorize a withdrawal under this subsection shall authorize an appropriation from the special revenue fund to one of the funds maintained pursuant to G.S. 159-13(a); however, no withdrawal may be authorized that would result in an appropriation for conservation easement maintenance purposes for which an adequate balance of eligible moneys or investment securities is not available in the special revenue fund at the time the resolution or ordinance under this subsection is adopted.
Fund Withdrawals When Other Body Adopts District's Budget Ordinance. - If a soil and water conservation district's budget ordinance is subject to adoption by another governing body, then the governing body that is responsible for adopting the soil and water district's budget ordinance must approve the appropriation of moneys from the special revenue fund established under this section to one of the funds maintained pursuant to G.S. 159-13(a), subject to the other limitations provided in subsection (e) of this section.

History

(2011-209, s. 2.)

Editor's Note. - Session Laws 2011-209, provides in its preamble: "Whereas, North Carolina is and always has been a leader in soil and water conservation, with the nation's first soil and water conservation district established in Brown Creek, Anson County, under the leadership of Dr. Hugh Hammond Bennett, the 'father of soil conservation' in the United States; and

"Whereas, to be effective in the long run, conservation easements require long-term or perpetual monitoring to assure that the intent of the easement donors and sellers is honored; and

§ 139-7.2. Training of elective and appointive district supervisors.

All district supervisors, whether elected or appointed, shall complete a minimum of six clock hours of training per term of service.
The training shall include soil, water, and natural resources conservation and the duties and responsibilities of district supervisors.
The training may be provided by the School of Government at the University of North Carolina at Chapel Hill, or other qualified sources as approved by the Soil and Water Conservation Commission.

History

(2016-113, s. 5(b); 2018-113, s. 12.)

Effect of Amendments. - Session Laws 2018-113, s. 12, effective June 27, 2018, substituted "per term of service" for "annually" in subsection (a).

§ 139-8. Powers of districts and supervisors.

A soil and water conservation district organized under the provisions of this Article shall constitute a governmental subdivision of this State, and a public body corporate and politic, exercising public powers, and such district, and the supervisors thereof, shall have the following powers in addition to others granted in other sections of this Chapter:
1. To conduct surveys and investigations relating to the character of soil erosion and floodwater and sediment damages, and to the conservation, utilization, and disposal of water, the development of water resources, and the preventive and control measures and works of improvement needed, to publish the results of such surveys and investigations, and to disseminate information concerning such preventive and control measures and works of improvement.
2. To carry out preventive and control measures and works of improvement for flood prevention or the conservation, utilization, and disposal of water and development of water resources within the district, including, but not limited to, engineering operations, methods of cultivation, the growing of vegetation, changes in use of land, and the measures listed in subsection (a), subdivision (3) of G.S. 139-2, on lands owned or controlled by this State or any of its agencies, with the cooperation of the agency administering and having jurisdiction thereof, and on any other lands within the district upon obtaining the consent of the occupiers of such lands or the necessary rights or interest in such lands.
3. To cooperate, or enter into agreements with, and within the limits or appropriations duly made available to it by law, to furnish financial or other aid to, any agency, governmental or otherwise, or any occupiers of land within the district, in the carrying on of erosion control and prevention operations and works of improvement for flood prevention or the conservation, utilization, and disposal of water and development of water resources within the district, subject to such conditions as the supervisors may deem necessary to advance the purposes of this Chapter.
4. To obtain options upon and to acquire by purchase, exchange, lease, gift, grant, devise, or otherwise, any property, real or personal, or rights or interests therein; to maintain, administer, and improve any properties acquired, to receive income from such properties and to expend such income in carrying out the purposes and provisions of this Chapter; and to sell, lease, or otherwise dispose of its property or interests therein in furtherance of the purposes and the provisions of this Chapter.
5. To make available, on such terms as it shall prescribe, to land occupiers within the district, agricultural and engineering machinery and equipment, fertilizer, seeds and seedlings, and such other material or equipment as will assist such land occupiers to carry on operations upon their lands for the conservation of soil resources and for the prevention and control of soil erosion and for flood prevention or the conservation, development, utilization, and disposal of water and the development of water resources.
6. To construct, improve, operate, and maintain such structures, works and projects as may be necessary or convenient for the performance of any of the operations authorized in this Chapter, including watershed improvement structures, works, and projects as well as any other structures, works, and projects which the district is authorized to undertake.
7. To develop comprehensive plans for the conservation of soil resources and for the control and prevention of soil erosion and for flood prevention or the conservation, utilization and disposal of water and development of water resources, within the district, which plans shall specify in such detail as may be possible, the acts, procedures, performances, and avoidances which are necessary or desirable for the effectuation of such plans, including the specification of engineering operations, methods of cultivation, the growing of vegetation, cropping programs, tillage practices, and changes in use of land; and to bring such plans and information to the attention of occupiers of lands within the district.
8. To act as agent for the United States, or any of its agencies, in connection with the acquisition, construction, operation, or administration of any project for soil conservation, erosion control, erosion prevention, flood prevention, or for the conservation, utilization, and disposal of water and development of water resources, or combinations thereof, within its boundaries; to accept donations, gifts, and contributions in money, services, materials, or otherwise, from the United States or any of its agencies, or from this State or any of its agencies, and to use or expend such moneys, services, materials, or other contributions in carrying on its operations, except that all forest tree seedlings shall be obtained insofar as available from the Department of Environmental Quality in cooperation with the United States Department of Agriculture.
9. To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its powers; to make, and from time to time amend and repeal, rules and regulations not inconsistent with this Chapter, to carry into effect its purposes and powers.
10. As a condition to the extending of any benefits under this Chapter to, or the performance of work upon, any lands not owned or controlled by this State or any of its agencies, the supervisors may require contributions in money, services, materials, or otherwise to any operations conferring such benefits, and may require land occupiers to enter into and perform such agreement or covenants as to the permanent use of such lands as will tend to prevent or control erosion and prevent floodwater and sediment damages therein.
11. No provision with respect to the acquisition, operation, or disposition of property by other public bodies shall be applicable to a district organized hereunder unless the legislature shall specifically so state.
12. Nothing contained in this Chapter shall authorize or allow the withdrawal of water from a watershed or stream except to the extent and degree now permissible under the existing common and statute law of this State; nor to change or modify such existing common or statute law with respect to the relative rights of riparian owners or others concerning the use or disposal of water in the streams of this State; nor to authorize a district, its officers or governing body or any other person, firm, corporation (public or private), body politic or governmental agency to utilize or dispose of water except in the manner and to the extent permitted by the existing common and statute law of this State.
13. To assist the Commission in the implementation and supervision of the Agriculture Cost Share Program for Nonpoint Source Pollution Control created pursuant to G.S. 106-850 and to assist in the implementation and supervision of any other program intended to protect water quality or quantity administered by the Department of Agriculture and Consumer Services by providing technical assistance, allocating available grant monies, and providing any other assistance that may be required or authorized by any provision of federal or State law.
A district supervisor may apply for and receive a grant under the Agriculture Cost Share Program for Nonpoint Source Pollution Control created pursuant to Article 72 of Chapter 106 of the General Statutes, the Community Conservation Assistance Program created pursuant to Article 73 of Chapter 106 of the General Statutes, or the Agricultural Water Resources Assistance Program created pursuant to Article 5 of this Chapter if:

The district supervisor does not vote on the application or attempt to influence the outcome of any action on the application; and
The application is approved by the Commission.

History

(1937, c. 398, s. 8; 1939, c. 341; 1959, c. 781, s. 7; 1969, c. 711, s. 1; 1973, c. 1262, s. 38; 1977, c. 771, s. 4; 1989, c. 727, s. 218(93); 1995, c. 519, ss. 2, 3; 1997-443, s. 11A.119(a); 2006-78, s. 4; 2011-145, ss. 13.22A(n), (dd), 13.23(e); 2011-284, s. 91; 2015-241, s. 14.30(u).)

Local Modification. - Duplin (As to subdivision (6)): 1969, c. 286; Johnston: 1969, c. 955; New Hanover: 1969, c. 958; Pender and Sampson (as to subdivision (6)): 1969, c. 286; Wayne: 1969, c. 821.

Editor's Note. - At the direction of the Revisor of Statutes, in subsection (b), "Article 72 of Chapter 106" was substituted for "Part 9 of Article 21 of Chapter 143" and "Article 73 of Chapter 106" was substituted for "Part 11 of Article 21 of Chapter 143" to conform to the recodification of Part 9 of Article 21 of Chapter 143 as Article 72 of Chapter 106 and Part 11 of Article 21 of Chapter 143 as Article 73 of Chapter 106 by Session Laws 2011-145, s. 13.22A(t) and (x).

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2006-78, s. 4, effective July 10, 2006, added "created pursuant to Part 9 of Article 21 of Chapter 143 of the General Statutes or the Community Conservation Assistance Program created pursuant to Part 11 of Article 21 of Chapter 143 of the General Statutes" in the introductory paragraph of subsection (b).

Session Laws 2011-145, s. 13.22A(n), effective July 1, 2011, in subdivision (a)(13), substituted "G.S. 106-850" for "G.S. 143-215.74," inserted "or quantity" following "water quality," substituted "Department of Agriculture and Consumer Services" for "Department of Environment and Natural Resources," and made a minor stylistic change.

Session Laws 2011-145, s. 13.23(e), effective July 1, 2011, in the introductory paragraph of subsection (b), inserted "or the Agricultural Water Resources Assistance Program created pursuant to Article 5 of this Chapter" and made a minor stylistic change.

Session Laws 2011-284, s. 91, effective June 24, 2011, deleted "bequest" following "grant" in subdivision (a)(4).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (a)(8).

Opinions of Attorney General

As to disposition or exchange of land by watershed improvement district, see opinion of Attorney General to Mr. Samuel H. Johnson, Watershed Improvement Commission, 41 N.C.A.G. 228 (1971).

§ 139-8.1. Purposes of Chapter.

It is hereby declared that the provisions of General Statutes Chapter 139 were intended to authorize the maintenance of watershed improvement works and projects, as well as watershed improvement structures. All expenditures heretofore incurred by any local watershed sponsor for any such maintenance of works, projects, or structures are hereby validated and confirmed.
The proceeds of any tax heretofore approved by the voters of a county for a county watershed improvement program, or authorized by special or local act for a county watershed improvement program, may be expended for such maintenance of works and projects, as well as structures, if the board of county commissioners or other watershed governing body after a public hearing determines that the proceeds should be so expended. Notice of such hearing shall be published as provided for notices under Article 2 of General Statutes Chapter 139.
The proceeds of any tax hereafter approved by the voters of a county for a watershed improvement program may be expended for such maintenance of works and projects, as well as structures, with or without the holding of a public hearing as designated by subsection (b) of this section, even though any election procedures preliminary to the vote approving the tax may have been initiated prior to the ratification of this section.
No action based on the alleged invalidity of the expenditures herein confirmed or of the use of tax proceeds herein authorized shall lie after January 1, 1970, to enjoin or contest any such expenditure or any such use of tax proceeds.

History

(1969, c. 711, s. 1.)

§ 139-8.2. Certain information confidential.

All information that is collected by soil and water conservation districts from farm owners, animal owners, agricultural producers or owners of agricultural land that is confidential under federal or State law shall be held confidential by the soil and water conservation districts, including:
1. Information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in soil and water conservation programs.
2. Geospatial information otherwise maintained by the district about agricultural lands or operations for which information described in subdivision (1) of this subsection is provided.
This section shall not include applications for cost-share assistance and associated contract documents that require the approval of the soil and water conservation district or the Soil and Water Conservation Commission.

History

(2020-18, s. 10(a).)

Editor's Note. - Session Laws 2020-18, s. 10(b), made this section effective October 1, 2020.

Session Laws 2020-18, s. 16(a), is a severability clause.

§ 139-9. Adoption of land-use regulations.

The supervisors of any district shall have authority to formulate regulations governing the use of lands within the district in the interest of conserving the soil and soil resources and preventing and controlling soil erosion. The supervisors may conduct such public meetings and public hearings upon tentative regulations as may be necessary to assist them in this work. The supervisors shall not have authority to enact such land-use regulations into law until after they shall have caused due notice to be given of their intention to conduct a referendum for submission of such regulations to the occupiers of lands lying within the boundaries of the district for their indication of approval or disapproval of such proposed regulations, and until after the supervisors have considered the result of such referendum. The proposed regulations shall be embodied in a proposed ordinance. Copies of such proposed ordinance shall be available for the inspection of all eligible voters during the period between publication of such notice and the date of the referendum. The notices of the referendum shall recite the contents of such proposed ordinance, or shall state where copies of such proposed ordinance may be examined. The question shall be submitted by ballots, upon which the words "For approval of proposed ordinance number ____________, prescribing land-use regulations for conservation of soil and prevention of erosion" and "Against approval of proposed ordinance number ____________, prescribing land-use regulations for conservation of soil and prevention of erosion" shall appear, with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose approval of such proposed ordinance. The supervisors shall supervise such referendum, shall prescribe appropriate regulations, governing the conduct thereof, and shall publish the result thereof. All occupiers of lands within the district shall be eligible to vote in such referendum. Only such land occupiers shall be eligible to vote. No informalities in the conduct of such referendum or in any matters relating thereto shall invalidate said referendum or the result thereof if notice thereof shall have been given substantially as herein provided and said referendum shall have been fairly conducted.

The supervisors shall not have authority to enact such proposed ordinance into law unless at least two thirds of the votes cast in such referendum shall have been cast for approval of the said proposed ordinance. The approval of the proposed ordinance by a two thirds of the votes cast in such referendum shall not be deemed to require the supervisors to enact such proposed ordinance into law. Land-use regulations prescribed in ordinances adopted pursuant to the provisions of this section by the supervisors of any district shall have the force and effect of law in the said district and shall be binding and obligatory upon all occupiers of lands within such district.

Any occupier of land within such district may at any time file a petition with the supervisors asking that any or all of land-use regulations prescribed in any ordinance adopted by the supervisors under the provisions of this section shall be amended, supplemented, or repealed. Land-use regulations prescribed in any ordinance adopted pursuant to the provisions of this section shall not be amended, supplemented, or repealed except in accordance with the procedure prescribed in this section for adoption of land-use regulations. Referenda on adoption, amendment, supplementation, or repeal of land-use regulations shall not be held more often than once in six months.

The regulations to be adopted by the supervisors under the provisions of this section may include:

Provisions requiring the carrying out of necessary engineering operations, including the construction of terraces, terrace outlets, check dams, dikes, ponds, ditches, and other necessary structures.
Provisions requiring observance of particular methods of cultivation including contour cultivating, contour furrowing, lister furrowing, sowing, planting, strip cropping, seeding, and planting of lands to water-conserving and erosion-preventing plants, trees and grasses, forestation, and reforestation.
Specifications of cropping programs and tillage practices to be observed.
Provisions requiring the retirement from cultivation of highly erosive areas or of areas on which erosion may not be adequately controlled if cultivation is carried on.
Provisions for such other means, measures, operations, and programs as may assist conservation of soil resources and prevent or control soil erosion in the district, having due regard to the legislative findings set forth in G.S. 139-2.

The regulations shall be uniform, throughout the territory comprised within the district except that the supervisors may classify the lands within the district with reference to such factors as soil type, degree of slope, degree of erosion threatened or existing, cropping and tillage practices in use, and other relevant factors, and may provide regulations varying with the type or class of land affected, but uniform as to all lands within each class or type. Copies of land-use regulations adopted under the provisions of this section shall be printed and made available to all occupiers of lands lying within the district.

History

(1937, c. 393, s. 9.)

Legal Periodicals. - For article, "The Role of States in Liberalizing Land Use Regulations,” see 97 N.C.L. Rev. 293 (2019).

§ 139-10. Enforcement of land-use regulations.

The supervisors shall have authority to go upon any lands within the district to determine whether land-use regulations adopted under the provisions of G.S. 139-9 are being observed. The supervisors are further authorized to provide by ordinance that any land occupier who shall sustain damages from any violation of such regulations by any other land occupier may recover damages at law from such other land occupier for such violation.

History

(1937, c. 393, s. 10.)

§ 139-11. Nonobservance of prescribed regulations; performance of work under the regulations by the supervisors.

Where the supervisors of any district shall find that any of the provisions of land-use regulations prescribed in an ordinance adopted in accordance with the provisions of G.S. 139-9 are not being observed on particular lands, and that such nonobservance tends to increase erosion on such lands and its interfering with the prevention of control of erosion on other lands within the district, the supervisors may present to the superior court for the county or counties within which the lands of the defendant lie a petition, duly verified, setting forth the adoption of the ordinance prescribing land-use regulations, the failure of the defendant land occupier to observe such regulations, and to perform particular work, operations, or avoidances as required thereby, and that such nonobservance tends to increase erosion on such lands and is interfering with the prevention or control of erosion on other lands within the district, and praying the court to require the defendant to perform the work, operations, or avoidances within a reasonable time and to order that if the defendant shall fail so to perform, the supervisors may go on the land, perform the work or other operations or otherwise bring the condition of such lands into conformity with the requirements of such regulations, and recover the cost and expenses thereof, with interest, from the occupier of such land. Upon the presentation of such petition, the court shall cause process to be issued against the defendant, and shall hear the case. If it appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may dismiss the petition, or it may require the defendant to perform the work, operations, or avoidances, and may provide that upon the failure of the defendant to initiate such performance within the time specified in the order of the court, and to prosecute the same to completion with reasonable diligence, the supervisors may enter upon the lands involved and perform the work or operations or otherwise bring the condition of such lands into conformity with the requirements of the regulations and recover the costs and expenses thereof, with interest at the rate of five per centum (5%) per annum, from the occupier of such lands.

The court shall retain jurisdiction of the case until after the work has been completed. Upon completion of such work pursuant to such order of the court the supervisors may file a petition with the court, a copy of which shall be served upon the defendant in the case, stating the costs and expenses sustained by them in the performance of the work and praying judgment therefor with interest. The court shall have jurisdiction to enter judgment for the amount of such costs and expenses, with interest at the rate of five per centum (5%) per annum until paid, together with the costs of suit, including a reasonable attorney's fee to be fixed by the court. This judgment, when filed in accordance with the provisions of G.S. 1-234, shall constitute a lien upon such lands.

History

(1937, c. 393, s. 11.)

§ 139-12. Cooperation between districts.

The supervisors of any two or more districts organized under the provisions of this Chapter may cooperate with one another in the exercise of any or all powers conferred in this Chapter.

History

(1937, c. 393, s. 12.)

§ 139-13. Discontinuance of districts.

At any time after five years after the organization of a district under the provisions of this Chapter, any 25 occupiers of land lying within the boundaries of such districts may file a petition with the Soil and Water Conservation Commission praying that the operations of the district be terminated and the existence of the district discontinued. The Commission may conduct such public meetings and public hearings upon such petition as may be necessary to assist it in the consideration thereof. Within 60 days after such a petition has been received by the Commission it shall give due notice of the holding of a referendum, and shall supervise such referendum, and issue appropriate regulations governing the conduct thereof, the question to be submitted by ballots upon which the words "For terminating the existence of the ______________ (name of the soil and water conservation district to be here inserted)" and "Against terminating the existence of the ______________ (name of the soil and water conservation district to be here inserted)" shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose discontinuance of such district. All occupiers of lands lying within the boundaries of the district shall be eligible to vote in such referendum. Only such land occupiers shall be eligible to vote. No informalities in the conduct of such referendum or in any matters relating thereto shall invalidate said referendum or the result thereof if notice thereof shall have been given substantially as herein provided and said referendum shall have been fairly conducted.

The Department of Agriculture and Consumer Services shall publish the result of such referendum and shall thereafter consider and determine whether the continued operation of the district within the defined boundaries is administratively practicable and feasible. If the Commission shall determine that the continued operation of such district is administratively practicable and feasible, it shall record such determination and deny the petition. If the Commission shall determine that the continued operation of such district is not administratively practicable and feasible, it shall record such determination and shall certify such determination to the supervisors of the district. In making such determination the Commission shall give due regard and weight to the attitudes of the occupiers of lands lying within the district, the number of land occupiers eligible to vote in such referendum who shall have voted, the proportion of the votes cast in such referendum in favor of the discontinuance of the district to the total number of votes cast, the approximate wealth and income of the land occupiers of the district, the probable expense of carrying on erosion control operations within such district, and such other economic and social factors as may be relevant to such determination, having due regard to the legislative findings set forth in G.S. 139-2: Provided, however, that the Commission shall not have authority to determine that the continued operation of the district is administratively practicable and feasible unless at least a majority of the votes cast in the referendum shall have been cast in favor of the continuance of such district.

Upon receipt from the Soil and Water Conservation Commission of a certification that the Commission has determined that the continued operation of the district is not administratively practicable and feasible, pursuant to the provisions of this section, the supervisors shall forthwith proceed to terminate the affairs of the district. The supervisors shall dispose of all property belonging to the district at public auction and shall pay over the proceeds of such sale to be covered into the State treasury. The supervisors shall thereupon file an application, duly verified, with the Secretary of State for the discontinuance of such district, and shall transmit with such application the certificates of the Soil and Water Conservation Commission setting forth the determination of the Commission that the continued operation of such district is not administratively practicable and feasible. The application shall recite that the property of the district has been disposed of and the proceeds paid over as in this section provided, and shall set forth a full accounting of such properties and proceeds of the sale. The Secretary of State shall issue to the supervisors a certificate of dissolution and shall record such certificate in an appropriate book of record in his office.

Upon issuance of a certificate of dissolution under the provisions of this section, all ordinances and regulations theretofore adopted and in force within such districts shall be of no further force and effect. All contracts theretofore entered into, to which the district or supervisors are parties, shall remain in force and effect for the period provided in such contracts. The Soil and Water Conservation Commission shall be substituted for the district or supervisors as party to such contracts. The Commission shall be entitled to all benefits and subject to all liabilities under such contracts and shall have the same right and liability to perform, to require performance, to sue and be sued thereon, and to modify or terminate such contracts by mutual consent or otherwise as the supervisors of the district would have had. Such dissolution shall not affect the lien of any judgment entered under the provisions of G.S. 139-11, nor the pendency of any action instituted under the provisions of such section, and the Commission shall succeed to all the rights and obligations of the district or supervisors as to such liens and actions.

The Soil and Water Conservation Commission shall not entertain petitions for the discontinuance of any district nor conduct referenda upon such petitions, nor make determinations pursuant to such petitions, in accordance with the provisions of this Chapter, more often than once in five years.

History

(1937, c. 393, s. 13; 1973, c. 1262, s. 38; 1977, c. 771, s. 4; 1989, c. 727, s. 218(94); 1997-443, s. 11A.119(a); 2011-145, s. 13.22A(o).)

Effect of Amendments. - Session Laws 2011-145, s. 13.22A(o), effective July 1, 2011, substituted "Department of Agriculture and Consumer Services" for "Department of Environment and Natural Resources" in the first sentence of the second paragraph.

§ 139-14. Dividing large districts.

Whenever the Soil and Water Conservation Commission shall receive a petition from any board of district supervisors signed by all supervisors of such district, the Commission shall have the authority to divide such district into two or more districts. The governing bodies of the resulting districts shall be composed of supervisors in the same manner and in the same number as is provided in G.S. 139-6 and 139-7. Upon the creating of new districts through dividing an existing district under the provisions of this section, the Commission shall appoint all district supervisors necessary to give such district its full quota of supervisors who shall serve until regular supervisors are elected or appointed, as the case may be, at the time of the next regular election of supervisors. The Commission shall assign a name to each district resulting from the division of the district under the provisions of this section and do all other things necessary to complete the organization of such new districts and place them on an operating basis.

History

(1947, c. 131, s. 8; 1973, c. 1262, s. 38.)

§ 139-15. "County committeeman" construed to mean "county supervisor"; powers and duties.

Wherever the words "county committeeman" or "county committeemen" appear in this Chapter, the same shall be construed to mean "county supervisor" or "county supervisors"; and each such county committeeman or county supervisor shall receive the same compensation and have and exercise the same rights, powers, duties, responsibilities and voting privileges granted to or imposed upon district supervisors in respect to soil conservation activities under the provisions of this Chapter.

History

(1949, c. 268, s. 2.)

ARTICLE 2. Watershed Improvement Districts.

Sec.

§§ 139-16 through 139-20: Repealed by Session Laws 1993, c. 391, ss. 2-6.

§ 139-20.1. Validation of creation of certain districts.

All actions had and taken prior to March 1, 1963, by supervisors of soil and water conservation districts, boards of county commissioners, boards of election, registrars, or other officials in the course of attempting to form and create watershed improvement districts, are hereby ratified, approved, validated and confirmed, as if accomplished in full and complete compliance with the law, and any watershed improvement district with respect to which formation may have been attempted and completed prior to March 1, 1963, is hereby declared to be lawfully formed, created, and in all respects constituted a legal and valid watershed improvement district.

History

(1963, c. 918, s. 1.)

Editor's Note. - Session Laws 1993 (Reg. Sess., 1994), c. 762, s. 5 changed the term "registrar" to "chief judge" throughout Chapter 163. It appears the reference to "registrars" above should now be a reference to "chief judges."

§§ 139-21 through 139-30: Repealed by Session Laws 1993, c. 391, ss. 7-16.

§ 139-31: Repealed by Session Laws 1963, c. 1228, s. 9.

§§ 139-32 through 139-36: Repealed by Session Laws 1993, c. 391, ss. 17-21.

§§ 139-37, 139-37.1: Recodified as G.S 139-48, 139-49 by Session Laws 1993, c. 391, ss. 22, 23.

§ 139-38: Repealed by Session Laws 1993, c. 391, s. 24.

ARTICLE 3. Watershed Improvement Programs; Expenditure by Counties.

Sec.

§ 139-39. Alternative method of financing watershed improvement programs by special county tax.

The board of county commissioners in any county is authorized to call a special election to determine whether it be the will of the qualified voters of the county that they levy and cause to be collected annually, at the same time and in the same manner as the general county taxes are levied and collected, a special tax at a rate not to exceed twenty-five cents (25) on each one hundred dollars ($100.00) valuation of property in said county, to be known as a "Watershed Improvement Tax," the funds therefrom, if the levy be authorized by the voters of said county, to be used for the prevention of flood water and sediment damages, and for furthering the conservation, utilization and disposal of water and the development of water resources. Any special election shall be conducted in accordance with G.S. 163-287.

History

(1959, c. 781, s. 10; 1967, c. 987, s. 8; 2013-381, s. 10.21; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - Alexander: 1967, c. 500; Cabarrus: 1965, c. 615; Camden: 1973, cc. 387, 957; Caswell: 1969, c. 553; Graham: 1967, c. 503; Iredell: 1967, c. 623; Johnston: 1969, c. 955; Lincoln: 1969, c. 934; Mecklenburg: 1969, c. 1191; Mitchell: 1963, c. 1033; New Hanover: 1969, c. 958; Onslow: 1967, c. 725, s. 1; Pasquotank: 1973, c. 957; Perquimans: 1973, c. 957; Person: 1967, c. 111, s. 1; Polk: 1963, c. 996; Rowan: 1967, c. 568; Stokes: 1963, c. 156; Surry: 1963, c. 442; Union: 1965, c. 19, s. 1; Wayne: 1969, c. 821; Yadkin: 1961, c. 433.

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted "G.S. 163A-1592" for "G.S. 163-287" at the end of the last sentence.

Editor's note. - Session Laws 2013-381, s. 10.32, makes the amendments to this section by Session Laws 2013-381, s. 10.21, applicable to special elections held on or after January 1, 2014.

Effect of Amendments. - Session Laws 2013-381, s. 10.21, effective January 1, 2014, added the last sentence. For applicability, see editor's note.

§ 139-40. Conduct of election.

There shall be no new registration of voters for such an election. Registration shall be open for registration of new voters in said county and registration of any and all legal residents of said county, who are or could legally be enfranchised as qualified voters for regular general elections, shall be carried out in accordance with the general election laws of the State of North Carolina as provided for local elections. Notice of such registration of new voters shall be published in a newspaper circulated in said county, once, not less than 55 days before and not more than 65 days before the election, stating the hours and days for registration. The special election, if called, shall be under the control and supervision of the county board of elections.
The form of the question shall be substantially the words "For Watershed Improvement Tax of Not More Than ________ Cents Per One Hundred Dollar ($100.00) Valuation," and "Against Watershed Improvement Tax of Not More Than ________ Cents Per One Hundred Dollar ($100.00) Valuation," which alternates shall appear separated from each other on one ballot containing opposite, and to the left of each alternate, squares of appropriate size in one of which squares the voter may make a mark "X" to designate the voter's choice for or against such tax, provided, the board of county commissioners may vary the aforesaid form of the question to be placed upon the ballot for the watershed improvement tax election in such manner as the board deems appropriate, and the board of elections shall cause to be placed upon the ballot such form of the question as may be requested by the board of county commissioners. The board of county commissioners shall designate the amount of the maximum annual rate of such tax to be levied, which amount may be less than but may not exceed twenty-five cents (25›) on the one hundred dollar ($100.00) valuation of property in the county, and said amount shall be stated on the ballot in the question to be voted upon. Such ballot shall be printed on white paper and each polling place shall be supplied with a sufficient number of ballots not later than the day before the election. At such special election the election board shall cause to be placed at each voting precinct in said county a ballot box marked "Watershed Improvement Tax Election".
The duly appointed judges and other election officials who are named and fixed by the county board of elections shall count the ballots so cast in such election and the results of the election shall be officially canvassed, certified and announced by the proper officials of the board of elections, according to the manner of canvassing, certifying and announcing the elections held under the general election laws of the State as provided for local elections.
If a majority of those voting in such election favor the levying of such a tax, the board of commissioners of such county is authorized to levy a special tax at a rate not to exceed twenty-five cents (25›) on each one hundred dollars ($100.00) of assessed value of real and personal property taxable in said county, not to exceed the maximum rate of tax approved by the voters in such election, and the General Assembly does hereby give its special approval for the levy of such special tax.

History

(1959, c. 781, s. 10; 1961, c. 32; 1969, c. 711, s. 2; 1993 (Reg. Sess., 1994), c. 762, s. 10.)

Legal Periodicals. - For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1097 (1981).

§ 139-41. Powers of county commissioners.

If the majority of the qualified voters voting in such election favor the levying of such tax, then and in that event, the board of county commissioners shall have all powers of soil and water conservation districts as set forth in subdivisions (1), (2), (3), (4), (5), (6), (7), (8) and (10) of G.S. 139-8 (subject to the limitations set forth in subdivision (12) of such section) concerning flood prevention, development of water resources, floodwater and sediment damages, and conservation, utilization and disposal of water. It is the intention of the General Assembly that such powers shall normally be exercised within all or parts of one or more single watersheds, or of two or more watersheds tributary to one of the major drainage basins of the State, but exceptions to this policy may be permitted in appropriate cases; provided, however, it is not the intention of the General Assembly to authorize hereby the diversion of water from one stream or watershed to another.
The board of county commissioners may itself exercise such powers or, for that purpose, may create a watershed improvement commission to be composed of three members appointed by the board. The terms of office of the members of the commission shall be six years, with the exception of the first two years of existence of the commission, in which one member shall be appointed to serve for a period of two years, one for a period of four years, and one for a period of six years; thereafter all members shall be appointed for six years, and shall serve until their successors have been appointed and qualified. Vacancies in the membership of the commission occurring otherwise than by expiration of term shall be filled by appointment to the unexpired term by the board of county commissioners. The commission shall hold its first meeting within 30 days after its appointment as provided for in this Article, and the beginning date of all terms of office of commissioners shall be the date on which the commission holds its first meeting. The commission at its first meeting shall select a chair, vice-chair, and secretary-treasurer to serve two-year terms. All acts done by the commission shall be entered in a book of minutes to be kept by the secretary-treasurer. A majority of the membership of the commission shall constitute a quorum. The commission shall meet in regular session at least quarterly and may meet specially upon the call of the chair or any members, and upon at least three-day notice of the time, place, and purpose of the meeting. The commission shall provide the board of county commissioners 30 days prior to July 1 a proposed budget for the fiscal year commencing on July 1 and shall provide the board of county commissioners an audit by a certified public accountant within 60 days after the expiration of the fiscal year ending on June 30.
The board of county commissioners may create a single watershed improvement commission for the entire county or may create separate commissions for individual projects or watersheds.
The board of county commissioners, as an alternative to itself exercising the powers set forth in subsection (a) of this section or to creating a watershed improvement commission for that purpose, may by resolution designate the soil and water conservation district having jurisdiction in the county to exercise authority for the board of county commissioners in carrying out the county watershed improvement program. The soil and water conservation district shall provide the board of county commissioners 30 days prior to July 1 a proposed budget for the fiscal year commencing on July 1 and shall provide the board of county commissioners an audit by a certified public accountant within 60 days after the expiration of the fiscal year ending on June 30.
Repealed by Session Laws 1981, c. 326, s. 5.
Any industry or private water user, the State of North Carolina, the United States or any of its agencies, any municipality, any other county, or any other political subdivision may participate in county watershed improvement programs hereunder in the same manner and to the same extent as provided by G.S. 139-37 with respect to participation in watershed improvement district programs.
The board of county commissioners may provide for county watershed improvement programs and any or all other related activities (such as water supply systems, sewerage systems, water resources programs, beach erosion control programs, and conservation programs) to be coordinated, to be jointly undertaken by two or more local agencies, or to be assigned to a single county agency designated by such name and organized in such manner as the board deems appropriate.
A Watershed Improvement Commission created pursuant to subsection (b) of this section or a soil and water conservation district designated pursuant to subsection (d) of this section may employ such officers, agents, consultants, and other employees as they may require; shall determine their qualifications, duties, and compensation; shall provide for the execution of surety bonds for the secretary-treasurer and such other officers, agents, and employees as shall be entrusted with funds or property, and shall provide for making and publication of an annual audit of the accounts of receipts and disbursements of the watershed improvement program.
District supervisors and watershed improvement commissioners shall receive a per diem allowance of seven dollars ($7.00) and necessary expenses while engaged in the discharge of official duties pursuant to subsections (b) and (d) of this section. Claims for per diem and expenses for any duty except attendance upon a meeting shall be paid only after approval of the commission or the Board of Supervisors respectively.

History

(1959, c. 781, s. 10; 1967, c. 987, s. 10; 1969, c. 711, s. 3; 1971, c. 1138, s. 2; 1973, c. 1262, s. 38; 1981, c. 326, s. 5; 1993, c. 391, s. 25.)

Local Modification. - Camden: 2011-134, s. 1; Davie: 1961, c. 794, s. 11/2; Forsyth: 1963, c. 761, s. 4; Guilford: 1963, c. 734; Iredell: 1961, c. 794, s. 11/2; 1963, c. 955; McDowell: 1963, c. 637; Onslow: 1967, c. 725, s. 21/2; Person: 1961, c. 794, s. 11/2; 1967, c. 111, s. 2; Polk: 1961, c. 794, s. 11/2; Rowan: 1961, c. 794, ss. 1, 11/2; 1963, c. 109; Stokes: 1963, cc. 155, 401; Union: 1961, c. 794, s. 11/2; 1963, c. 955; 1965, c. 19, s. 2; Wake: 1961, c. 794, s. 11/2; Yadkin: 1961, c. 794, s. 11/2; 1963, c. 401.

Editor's Note. - Section 10 of Session Laws 1967, c. 987, which amended this section, provides: "It is hereby declared that the purpose of this section is to clarify the existing authority of boards of county commissioners to acquire property in connection with county watershed improvement programs. The authority expressed in this section concerning acquisition, use and disposition of property by counties under the provisions of G.S. 139-41 (a)(4) shall be considered to be in addition to the general property acquisition use and disposal powers of counties under G.S. Chapter 153 or otherwise. All expenditures heretofore incurred by counties for property acquisition in connection with county watershed improvement programs are hereby validated and confirmed, as being based upon said general property acquisition powers of counties. The proceeds of any tax heretofore or hereafter approved by the voters of a county for a county watershed improvement program, or authorized by local act for a county watershed improvement program, may be expended for property acquisition in connection with such program." Chapter 153 was repealed by Session Laws 1973, c. 822. For present provisions relating to counties, see Chapter 153A.

§ 139-41.1. Powers of counties that are not authorized to levy watershed improvement taxes.

A county may exercise any of the powers set out in this Article without having been authorized to levy a watershed improvement tax pursuant to the procedures of G.S. 139-39 and 139-40 or otherwise.

History

(1981, c. 251, s. 1.)

§ 139-41.2. Review of watershed work plans.

Watershed work plans developed under Public Law 566 (83rd Congress) as amended, and all other work plans developed pursuant to this Chapter, shall be submitted to the Soil and Water Conservation Commission for review and approval or disapproval. No work of improvement may be constructed or established without the approval of work plans by the Soil and Water Conservation Commission pursuant to this section.
The Soil and Water Conservation Commission shall approve a watershed work plan if, in its judgment, it:
1. Provides for proper and safe construction of proposed works of improvement;
2. Shows that the construction and operation of the proposed works of improvement (in conjunction with other such works and related structures of the district and the watershed) will not appreciably diminish the flow of useful water that would otherwise be available to existing downstream water users during critical periods;
3. Determines whether a program of floodplain management in connection with such proposed works is in the public interest, and the Soil and Water Conservation Commission may withhold approval until satisfactory floodplain management measures are incorporated; and
4. Is otherwise in compliance with law.
Amendments to the work plan involving major changes shall be approved by the Soil and Water Conservation Commission. Determinations by the Soil and Water Conservation Commission that an amendment involve major changes shall be conclusive for purposes of this section. No work of improvement may be constructed or established without the approval of work plans by the Soil and Water Conservation Commission pursuant to this subsection. The construction or establishment of any such work of improvement without such approval, or without conforming to a work plan approved by the Soil and Water Conservation Commission, may be enjoined. The Soil and Water Conservation Commission may institute an action for such injunctive relief in the superior court of any county wherein such construction or establishment takes place.
In conjunction with any work plans submitted to the Soil and Water Conservation Commission under subsection (c) of this section, a county shall submit in such form as the Soil and Water Conservation Commission may prescribe a plan of its proposed method of operations for works of improvement covered by the work plans and for related structures. With the approval of the Soil and Water Conservation Commission, the county may amend its initial plan of operations from time to time. Soil and Water Conservation Commission approval of the initial plan of operations shall not be required.
If the Soil and Water Conservation Commission has reason to believe that a county is not operating any work of improvement or properly related structure in accordance with its plan of operations as amended, the Soil and Water Conservation Commission on its own motion or upon complaint may order a hearing to be held thereon upon not less than 30 days' written notification to the county and complainant, if any, by personal service or registered mail. Notice of such hearing shall be published at least once a week for two successive weeks. In connection with any such hearing the Soil and Water Conservation Commission shall be empowered to administer oaths; to take testimony; and, in the same manner as the superior court, to order the taking of depositions, issue subpoenas, and to compel the attendance of witnesses and production of documents. If the Soil and Water Conservation Commission determines from evidence of record that the county is not operating any work of improvement or related structure in accordance with its plan of operations, as amended, the Soil and Water Conservation Commission may issue an order directing the county to comply therewith or to take other appropriate corrective action. Upon failure by a county to comply with any such order, the Soil and Water Conservation Commission may institute an action for injunctive relief in the superior court of any county wherein such noncompliance occurs.

History

(1981, c. 326, s. 6; 2007-495, s. 16.)

Effect of Amendments. - Session Laws 2007-495, s. 16, effective August 30, 2007, substituted "floodplain" for "flood plain" twice in subdivision (b)(3).

§ 139-41.3. Liability of owners of land associated with watershed improvement projects.

Purpose. - The purpose of this section is to encourage owners of land to make land and water areas available to the public at no cost for educational and recreational purposes by limiting the liability of the owner to persons entering the land for those purposes. The further purpose of this section is to establish a statutory rule of landowner liability law to govern the liability of a landowner whose land is associated with a watershed improvement project as defined by this Chapter to persons entering the land for educational and recreational purposes without charge. This statutory rule modifies the common law of North Carolina concerning landowner liability.
Definitions. - The following definitions apply in this section, unless otherwise specified:
1. Charge. - A price or fee asked for services, entertainment, recreation performed, or products offered for sale on land or in return for an invitation or permission to enter upon land, except as otherwise excluded in this section.
2. Educational purpose. - Any activity undertaken as part of a formal or informal educational program, and viewing historical, natural, archaeological, or scientific sites.
3. Land. - Real property, land, and water. The term does not include a dwelling or the property immediately adjacent to and surrounding the dwelling that is generally used for activities associated with occupancy of the dwelling as a living space.
4. Land associated with watershed improvement projects. - The entire parcel or set of parcels on which any part of a watershed improvement project is located, including any fee easement, leasehold interest or legal possession.
5. Legal entity. - The term includes (in addition to a private entity) a county, city, special district, public authority, or other unit or agency of government.
6. Owner. - Any individual or legal entity that has any fee, easement, leasehold interest, or legal possession, and any employee or agent of the individual or legal entity.
7. Recreational purpose. - Any activity undertaken for recreation, exercise, education, relaxation, refreshment, diversion, or pleasure.
Exclusion. - For purposes of this Chapter, the term "charge" does not include any of the following:
1. Any contribution in-kind, services, or cash contributed by a person, legal entity, nonprofit organization, or governmental entity other than the owner, whether or not sanctioned or solicited by the owner, the purpose of which is to: (i) remedy damage to land caused by educational or recreational use; or (ii) provide warning of hazards on, or remove hazards from, land used for educational or recreational purposes.
2. Unless otherwise agreed in writing or otherwise provided by the State or federal tax codes, any property tax abatement or relief received by the owner from the State or local taxing authority in exchange for the owner's agreement to open the land for educational or recreational purposes.
3. Any volunteer service involving trash pickup, stream cleanup, or stream bank restoration.
Limitation of Liability. - Except as specifically recognized by or provided for in this section, an owner of land associated with a watershed improvement project, as defined by this Chapter, who either directly or indirectly invites or permits without charge any person to use the land for educational or recreational purposes owes the person the same duty of care that he or she owes a trespasser, except that nothing in this Chapter shall be construed to limit or nullify the doctrine of attractive nuisance and the owner shall inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge.

This section does not apply to an owner who invites or permits any person to use land for a purpose for which the land is regularly used and for which a price or fee is usually charged even if it is not charged in that instance, or to an owner whose purpose in extending an invitation or granting permission is to promote a commercial enterprise.

History

(2001-272, s. 1.)

Editor's Note. - Session Laws 2001-272, which added this section, provides in s. 2: "This act becomes effective October 1, 2001, and applies to all causes of action arising on or after that date. All insurance policies providing liability coverage for land, as defined in G.S. 139-41.3(b)(3) covered by Section 1 of this act [G.S. 139-41.3] shall be rerated on the anniversary dates of the policies next following the effective date of Section 1 of this act, to reflect the added limitation of liability contained in G.S. 139-41.3."

§ 139-42. Article intended as supplementary.

This Article is intended to provide an alternative method of financing and operating watershed improvement programs, supplementary to any other method authorized by law.

History

(1959, c. 781, s. 10; 1993, c. 391, s. 26.)

§ 139-43: Repealed by Session Laws 1993, c. 391, s. 27.

§ 139-44. Power of eminent domain conferred on counties.

A county shall have the power to acquire by condemnation any interest in land needed in carrying out the purposes of this act, except interests in land within the boundaries of any project licensed by the Federal Power Commission or interests in land owned or held for use by a public utility as defined in G.S. 62-3. This power may be exercised only after:
1. The county makes application to the Soil and Water Conservation Commission, identifying the land sought to be condemned and stating the purposes for which said land is needed; and
2. The Soil and Water Conservation Commission finds that the land is sought to be acquired for a proper county purpose. The findings of the Soil and Water Conservation Commission shall be conclusive in the absence of fraud, notwithstanding any other provision of law.
The Soil and Water Conservation Commission shall certify copies of its findings to the applicant county, the Environmental Management Commission and the clerk of the superior court of the county or counties wherein any part of the project lies for recordation in the special proceedings thereof.
For purposes of this section:
1. The term "interest in land" means any land, right-of-way, right of access, privilege, easement, or other interest in or relating to land. Said "interest in land" does not include an interest in land which is held or used in whole or in part for a public water supply, unless such "interest in land" is not necessary or essential for such uses or purposes.
2. A "description" of land shall be sufficient if the boundaries of the land are described in such a way as to convey an intelligent understanding of the location of the land. In the discretion of the applicant county, boundaries may be described by any of the following methods or any combination thereof: by reference to a map; by metes and bounds; by general description referring to natural boundaries, or to boundaries of existing political subdivisions or municipalities, or to boundaries of particular tracts or parcels of land.
3. "Commission" means the Soil and Water Conservation Commission.
The procedure in all condemnation proceedings pursuant to this section shall conform as nearly as possible to the procedure provided in Chapter 40A and all acts amendatory thereof.
Interests in land acquired pursuant to this section may be used in such manner and for such purposes as the board of county commissioners deem best. If, in the opinion of the board, such lands should be sold, leased or rented, the board may do so, subject to the approval of the Soil and Water Conservation Commission.
All provisions of local acts inconsistent herewith limiting condemnation powers of counties for county watershed improvement programs are hereby repealed.

History

(1967, c. 987, s. 5; 1973, c. 1262, s. 38; 1981, c. 326, s. 4; c. 919, s. 19; 1993, c. 391, ss. 28, 29.)

Editor's Note. - This section was formerly G.S. 139-38. It was amended and transferred to its present position by Session Laws 1981, c. 326, s. 4. Former G.S. 139-44 was renumbered as G.S. 139-38 by Session Laws 1981, c. 326, s. 7.

§ 139-45. Extraterritorial powers of counties.

A county which has been authorized to levy a watershed improvement tax, whether pursuant to Article 3 of General Statutes 139 or by special act or otherwise, may take any authorized watershed action and may expend funds for any authorized watershed purpose (including acquisition of real and personal property, easements, options, or other interests in real property) outside as well as inside the boundaries of the county, if the board of county commissioners finds that substantial flood prevention, drainage or water supply benefits will accrue to property located within the boundaries of the county as a result of such action or expenditure. The board of county commissioners may delegate to a watershed improvement commission the function of making such findings, either generally or in a particular case.

History

(1967, c. 987, s. 7.)

§ 139-46. Recreational and related aspects of watershed improvement programs.

Local watershed sponsors may install and maintain recreational facilities and services in connection with watershed improvement works or projects, and may provide areas (including structures) for the conservation and replacement of fish and wildlife habitat. For any of these purposes said sponsors may appropriate and expend funds, may levy taxes and assessments, and may issue bonds and notes, to the same extent as in the case of other authorized watershed activities. Such recreational facilities and services may include but are not limited to any or all of the water-related recreational facilities provided for in subsection (b) of this section, and parking areas, ingress and egress roads, hiking or nature trails, picnic areas and campsites. No application for watershed planning under Public Law 566 (83rd Congress, United States), as amended, may be approved by the Soil and Water Conservation Commission until after receipt and consideration of recommendations from the appropriate fish and wildlife agency concerning replacement of fish and wildlife habitat in mitigation of anticipated damages: Provided that this requirement for consideration of fish and wildlife recommendations shall not apply if such recommendations are not received by the Soil and Water Conservation Commission within 30 days after the Soil and Water Conservation Commission requests such recommendations. Within the meaning of this provision the "appropriate fish and wildlife agency" means the North Carolina Wildlife Resources Commission as to matters within its jurisdiction, and the North Carolina Department of Environmental Quality as to matters within its jurisdiction, or both such agencies as to matters within their concurrent jurisdiction.
It is hereby declared that the provisions of this Chapter authorizing works of improvement, structures, plans, surveys and investigations for the development of water resources were intended to include water-related recreational facilities, including but not limited to boat launching areas and facilities, bathhouses, campsites and picnic areas adjacent to the water, and other basic facilities for water recreational areas. All expenditures heretofore incurred by any local watershed sponsor for such water-related recreational facilities are hereby validated and confirmed. The proceeds of any tax heretofore approved by the voters of a county for a county watershed improvement program, or authorized by special or local act for a county watershed improvement program, may be expended for such water-related recreational facilities, if the board of county commissioners after a public hearing determines that the proceeds should be so expended. Notice of such hearing shall be published at least once a week for two consecutive weeks in at least one newspaper of general circulation published in the county, in lieu thereof, in a newspaper of general circulation in the county. No action based on the alleged invalidity of the expenditures herein confirmed or of the use of tax proceeds herein authorized shall lie after January 1, 1968, to enjoin or contest any such expenditure or any such use of tax proceeds.
Within the meaning of this section "local watershed sponsors" include soil and water conservation districts, drainage districts, municipalities, and counties undertaking county watershed programs under Article 3 of this Chapter or any local act granting similar powers.

History

(1967, c. 987, s. 9; 1973, c. 1262, ss. 38, 86; 1977, c. 771, s. 4; 1989, c. 727, s. 218(95); 1993, c. 391, s. 30; 1997-443, s. 11A.119(a); 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" near the end of subsection (a).

§ 139-47: Repealed by Session Laws 1993, c. 391, s. 31.

§ 139-48. Participation by cities, counties, industries and others.

Any industry, or private water user, the State of North Carolina, the United States or any of its agencies, any county, municipality or any other political subdivision may participate in watershed improvement works or projects upon mutually agreeable terms relating to such matters as the construction, financing, maintenance and operation thereof.
Any county or municipality may contribute funds toward the construction, maintenance and operation of watershed improvement works or projects, to the extent that such works or projects:
1. Provide a source (respectively) of county or municipal water supply; or protect an existing source of such supply, enhance its quality or increase its dependable capacity or quantity; or
2. Protect against or alleviate the effects of flood-water or sediment damages affecting, or provide drainage benefits for, (respectively) county or municipally owned property or the property (respectively) of county or municipal inhabitants located outside the boundaries of such works or projects but within the respective boundaries of such county or municipality.

Each county and city may fund appropriations for the purposes of this section by levy of property taxes pursuant to G.S. 153A-149 and G.S. 160A-209 and by the allocation of other revenues whose use is not otherwise restricted by law.

History

(1959, c. 781, s. 8; 1973, c. 803, s. 33; 1993, c. 391, ss. 22, 32.)

§ 139-49. Borrowing by local units for anticipated water supplies.

Any local unit may issue bonds or other obligations in the manner provided by this section (and may appropriate and expend funds derived therefrom) for the purpose of financing all or any part of the cost of providing storage capacity for anticipated future or present water supply needs, in conjunction with any watershed improvement work or project.
Any two or more local units, each situated in whole or in part in the basin of the same river in which a watershed improvement work or project is located, may issue bonds or other obligations for the purpose stated in subsection (a) of this section in such amounts as constitute their proportionate parts, respectively, of the estimated cost of such a work or project. The governing bodies of said local units shall jointly determine and agree upon the proportionate part of the estimated cost which each local unit is to bear, taking into consideration the taxable resources of each local unit and such other economic and beneficial factors as deemed pertinent and advisable, and such determination shall be recorded in the minutes of each such body.
Such bonds or other obligations of counties shall be issued pursuant to the Local Government Finance Act, Chapter 159 of the General Statutes: Provided, the amount thereof shall constitute a deduction from the gross debt under G.S. 159-55(a)(2): Provided, further, the provisions of G.S. 159-65(2) shall not apply to such bonds.
Such bonds or other obligations of municipalities shall be issued pursuant to the Local Government Finance Act, Chapter 159 of the General Statutes, and the amount thereof shall constitute a deduction from the gross debt under G.S. 159-55(a)(2): Provided, such bonds may not be consolidated with bonds authorized by another ordinance as provided in G.S. 159-65(2).
Notwithstanding any other provisions of law, the Local Government Commission may sell any bonds or other obligations issued pursuant to this section to the United States of America, or any agency thereof, at private sale and without advertisement. The first installment of principal of bonds or other obligations issued under this section may be made payable not more than 10 years after the date of the bonds or obligations. Accrual of interest may be deferred not more than 10 years. Any such bonds or other obligations may contain appropriate provisions which will authorize the initiation of payments of interest and installments of principal on the bonds on a date not later than 10 years from the date of such bonds or obligations, or on the date when the local unit shall begin to use such local water supplies, whichever date shall occur first. The date on which such use of local water supplies begins shall be determined by the governing body of the local unit issuing such bonds or other obligations, which determination shall be binding and conclusive.
If the bonds or other obligations of one or more local units which have agreed upon their proportionate part of the estimated cost, as provided for in subsection (b) of this section, are required by the laws or the Constitution to be submitted to the voters of such local unit at an election and a majority of said voters voting in said election vote against the issuance of such bonds, the bonds or other obligations of any other local unit which have been duly authorized may be issued in whole or in part only when a sufficient number of local units have agreed upon their proportionate part as provided in subsection (b) of this section and have duly authorized their bonds or obligations so that the full amount of such estimated cost may be paid.
As used in this section the following terms have the following meanings:

"Local unit" means any county or municipality.

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

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

History

(1967, c. 987, s. 4; 1993, c. 391, ss. 23, 33(a), (b).)

§§ 139-50 through 139-52: Reserved for future codification purposes.

ARTICLE 4. Grants for Small Watershed Projects.

Sec.

§ 139-53. State Soil and Water Conservation Commission authorized to accept applications.

The State Soil and Water Conservation Commission is authorized to accept applications for grants for nonfederal costs relating to small watershed projects authorized under Public Law 566 (83rd Congress as amended) from local sponsors of such projects properly organized under the provisions of either Chapter 156 of the General Statutes of North Carolina or Chapter 139 of the General Statutes of North Carolina, or from county service districts authorized by G.S. 153A-301, or from municipal service districts authorized by G.S. 160A-536. Applications shall be made on forms prescribed by the Commission.

History

(1977, 2nd Sess., c. 1206; 1981, c. 326, s. 9.)

§ 139-54. Purposes for which grants may be requested.

Applications for grants may be made for the nonfederal share of small watershed projects for the following purposes in amounts not to exceed the percentage of the nonfederal costs indicated:

Land rights acquisition for impounding or retarding water - fifty percent (50%).
Engineering fees - fifty percent (50%).
Anticipated future and present water supply needs in conjunction with watershed improvement works or projects as described in G.S. 139-37.1 - fifty percent (50%).
Installation of recreational facilities and services (to include land acquisition) as described in G.S. 139-46 - fifty percent (50%).
Construction costs for water management (drainage or irrigation) purposes, including utility and road relocations not funded by the State Department of Transportation - sixty-six and two-thirds percent (66 2/3%).
Conservation and replacement of fish and wildlife habitat as described in G.S. 139-46 - seventy-five percent (75%).
Rehabilitation or improvement of water resources structural measures in accordance with criteria established by the Natural Resources Conservation Service of the United States Department of Agriculture pursuant to the Watershed Protection and Flood Prevention Act of 1954, as amended by the Small Watershed Rehabilitation Amendments of 2000 (Pub. L. No. 106-472, 114 Stat. 2007), codified at 16 U.S.C. § 1001, et. seq.; the Dam Safety Law of 1967, G.S. 143-215.23, et. seq.; and rules adopted pursuant thereto - fifty percent (50%).

History

(1977, 2nd Sess., c. 1206; 1979, c. 1046, s. 2; 2002-176, s. 3.)

§ 139-55. Review of applications.

The State Soil and Water Conservation Commission shall receive and review applications for grants for small watershed projects authorized under Public Law 566 (83rd Congress, as amended) and approve, approve in part, or disapprove all such applications.
In reviewing each application, the State Soil and Water Conservation Commission shall consider:
1. The financial resources of the local sponsoring organization;
2. Nonstructural measures such as sedimentation control ordinances and floodplain zoning ordinances enacted and enforced by local governments to alleviate flooding;
3. Regional benefits of projects to an area greater than the area under jurisdiction of the local sponsoring organization;
4. Any direct benefit to State-owned lands and properties.

History

(1977, 2nd Sess., c. 1206; 2002-165, s. 2.17; 2007-495, s. 17.)

Effect of Amendments. - Session Laws 2007-495, s. 17, effective August 30, 2007, substituted "floodplain" for "flood plain" in subdivision (b)(2).

§ 139-56. Recommendation of priorities and disbursal of grant funds.

Whenever two or more applications for grants are approved in whole or in part, the State Soil and Water Conservation Commission shall establish priorities among the several applications for disbursal of grant funds. To the extent that funds are available, the State Soil and Water Conservation Commission may authorize the disbursal of grant funds to the applicants consistent with the established priorities. The State Soil and Water Conservation Commission shall promulgate regulations to provide for an audit of grant funds to assure that they are spent for the purposes delineated in the application. Established priorities may be reviewed from time to time and revised if circumstances warrant such revision.

History

(1977, 2nd Sess., c. 1206.)

§ 139-57. Availability of funds.

All grants shall be contingent upon the availability of funds for disbursement to applicants. At the end of each fiscal year the State Soil and Water Conservation Commission shall notify all applicants whose applications have been approved and to whom grant funds have not been disbursed of the status of their application. At the time of notification the State Soil and Water Conservation Commission shall notify the applicants of the availability of funds for grants in the upcoming fiscal year and at the same time shall notify the applicants of their position on any priority list that may have been established for the disbursal of grant funds for small watershed projects.

History

(1977, 2nd Sess., c. 1206.)

§§ 139-58, 139-59: Reserved for future codification purposes.

ARTICLE 5. Agricultural Water Resources Assistance Program.

Sec.

§ 139-60. Agricultural Water Resources Assistance Program.

Program Established. - The Agricultural Water Resources Assistance Program is established. The purpose of the Program shall be to assist farmers and landowners in doing any one or more of the following:
1. Identify opportunities to increase water use efficiency, availability, and storage.
2. Implement best management practices to conserve and protect water resources.
3. Increase water use efficiency.
4. Increase water storage and availability for agricultural purposes.
Program Administration. - The Agricultural Water Resources Assistance Program shall be implemented by the Soil and Water Conservation Commission through the soil and water conservation districts in the same manner as the Agriculture Cost Share Program for Nonpoint Source Pollution Control under Article 72 of Chapter 106 of the General Statutes. The Soil and Water Conservation Commission shall supervise and administer this Program as provided in this section and as provided in Article 72 of Chapter 106 of the General Statutes for the Agriculture Cost Share Program for Nonpoint Source Pollution Control. At least once each calendar year, the Director of the Division of Soil and Water Conservation of the Department of Agriculture and Consumer Services and the Commissioner of Agriculture shall meet with stakeholders for the purpose of advising the Soil and Water Conservation Commission on the development and administration of the Program, including the development of annual goals for the Program.
Program Functions. - Under the Agricultural Water Resources Assistance Program, the Soil and Water Conservation Commission shall do the following:
1. Within funds available for this Program, provide cost-share funds subject to all of the following limitations and requirements:
  1. Except as provided in G.S. 106-850(b)(9), State funding shall be limited to:
    1. Seventy-five percent (75%) of the average cost for each project, with the assisted person providing twenty-five percent (25%) of the project cost, which may include in-kind support of the project.
    2. A maximum of seventy-five thousand dollars ($75,000) per year to each applicant.
  2. Applicants shall be limited to farmers who have an adjusted gross income in each of the previous two years that is at or below two hundred fifty thousand dollars ($250,000), unless at least seventy-five percent (75%) of this adjusted gross income is derived directly from farming, ranching, or forestry operations.
  3. The requirements and limitations under subdivisions (1), (2), (5), (7), and (8) of subsection (b) of G.S. 106-850 do not apply. All other limitations and requirements set out in Article 72 of Chapter 106 of the General Statutes, as modified by this section, apply.
2. Approve best management practices eligible for cost-share funds under this Program.
3. Establish criteria to allocate funds to local soil and water conservation districts. The criteria shall include the development of agricultural wells.
4. Develop a process for soliciting and reviewing applications and for selecting farmers to participate in the Program.
5. Investigate and pursue other funding sources to supplement State funds, including federal, local, and private funding sources.
6. Provide technical assistance to participating persons to assist with the projects that are eligible for cost-share funds under subsection (a) of this section and to facilitate the timely transfer of technology among participating persons.
7. Adopt temporary and permanent rules as necessary to implement this Program.
To be eligible for assistance under this program, each applicant must establish that the applicant meets the definition of a bona fide farm as described by G.S. 153A-340(b)(2).
In extraordinary circumstances, the Commission may permit an applicant to establish that he or she is engaged in farming with an alternate form of documentation if the farm has a conservation plan that meets the statutory purposes of the program.
Report. - No later than January 31 of each year, the Division of Soil and Water Conservation of the Department of Agriculture and Consumer Services shall prepare a comprehensive report on the implementation of subsections (a) through (c) of this section. The report shall be submitted to the Environmental Review Commission and the Fiscal Research Division as a part of the report required by G.S. 106-850(e).

History

(2011-145, ss. 13.23(a), 13.23A(b); 2011-391, s. 32; 2012-142, s. 11.2A(b); 2014-100, s. 13.3(a); 2015-263, s. 37(b); 2017-10, s. 4.18(c).)

Editor's Note. - Session Laws 2011-145, s. 13.22A(a), transferred the Division of Soil and Water Conservation, referred to in subsections (b) and (d), from the Department of Environment and Natural Resources to the Department of Agriculture and Consumer Services. The references to the Division of Soil and Water Conservation of the Department of Environment and Natural Resources have been updated at the direction of the Revisor of Statutes.

Session Laws 2011-145, s. 13.22A(t), recodified G.S. 143-215.74, referred to in subdivisions (c)(1)a. and (c)(1)c. and subsection (d), as G.S. 106-850 and Part 9 of Article 21 of Chapter 143, referred to in subsection (b) and subdivision (c)(1)c. as Article 72 of Chapter 106. The references have been updated at the direction of the Revisor of Statutes.

Session Laws 2011-145, s. 13.23(f)-(g), provides: "(f) The stakeholders that the Director of the Division of Soil and Water Conservation of the Department of Environment and Natural Resources [now Division of Soil and Water Conservation of the Department of Agriculture and Consumer Services] and the Commissioner of Agriculture shall meet with, as required under G.S. 139-60, as enacted by subsection (a) of this section, shall be the stakeholders involved in identifying and developing best management practices for water conservation and water efficiency by agricultural water users pursuant to S.L. 2010-149.

"(g) The first report required by G.S. 139-60, as enacted by subsection (a) of this section, shall be submitted to the Environmental Review Commission no later than January 31, 2013."

Session Laws 2011-145, s. 13.23(h), as amended by Session Laws 2011-391, s. 31, provides: "Of the funds available to the Department of Environment and Natural Resources for Water Resource Projects, the sum of one million dollars ($1,000,000) shall be transferred to the Department of Agriculture and Consumer Services, Division of Soil and Water Conservation, for the 2011-2012 fiscal year to implement the Agricultural Water Resources Assistance Program established in Article 5 of Chapter 139 of the General Statutes, as enacted by subsection (a) of this section. The Soil and Water Conservation Commission may use up to fifteen percent (15%) of these funds for the costs of the Division of Soil and Water Conservation and the costs of the Soil and Water Conservation Districts to provide engineering assistance, to provide technical assistance, and to administer the Agricultural Water Resources Assistance Program. Any of these funds that are not expended or encumbered as of June 30, 2012, shall not revert and shall remain available for purposes set forth in this subsection until expended."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-263, s. 37(c), made the amendment of subsection (c1) applicable to applications submitted or pending on or after September 30, 2015.

Session Laws 2015-263, s. 38(a), is a severability clause.

Session Laws 2017-10, s. 4.18(d), provides that the first combined report required by Session Laws 2017-10, s. 4.18(c), which added the requirement to subsection (d) of this section, shall be submitted to the Environmental Review Commission and the Fiscal Research Division no later than January 31, 2018.

Session Laws 2017-10, s. 5.1, is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 13.23A(b), as amended by Session Laws 2011-391, s. 32, effective July 1, 2011, added subsection (c1).

Session Laws 2012-142, s. 11.2A(b), effective July 1, 2012, in subsection (c1), deleted "a copy of the applicant's federal tax Schedule F (Form 1040) for the most recent tax year showing the applicant's profit or loss from farming" at the end; added subdivisions (c1)(1) through (c1)(3); and added subsection (c2).

Session Laws 2014-100, s. 13.3(a), effective July 1, 2014, added the last sentence in subdivision (c)(3).

Session Laws 2015-263, s. 37(b), effective September 30, 2015, and applicable to applications submitted or pending on or after that date, rewrote subsection (c1).

Session Laws 2017-10, s. 4.18(c), effective May 4, 2017, inserted "and the Fiscal Research Division" near the end of the second sentence in subsection (d).