Legislative Updates

 

July 27, 2011

Legislative Synopsis

Require Labels for Ethanol Blended Gasoline – House Bill 187; Session Law 2011-25

 This bill requires that all fuel dispensing pumps which offer ethanol blended gasoline for retail sale in North Carolina use labels indicating that the gasoline contains either 10% or less ethanol by volume or greater than 10% ethanol by volume.  This bill was enacted and effective April 7, 2011.

 Confectioners May Use Up to 5% Alcohol by Vol. – House Bill 90; Session Law 2011-26

 This bill amends N.C. Gen. Stat. 106-129(3), which deems when foods are adulterated, to allow confectioners to make confectioneries that contain 5% or less alcohol by volume before it is considered “adulterated.”  If it contains more than .5% (one half of one percent) alcohol by volume, the alcohol content must be conspicuously displayed on the label.  This bill was enacted and effective April 7, 2011.

 Reclaimed Water Rules/Storm Debris Cleanup – House Bill 268; Session Law 2011-48

 This bill establishes that reclaimed water can be used without a permit, specifically mentioning irrigation of ornamental crops by field nurseries and above ground container nurseries.  The act also states that setback requirements and design criteria for wastewater treatment facilities do not apply to artificial lakes and ponds used for storage and irrigation of reclaimed water as part of a conjunctive use reclaimed water system.  Further, the act requires that the Environmental Management Commission adopt a rule to replace its Reclaimed Water Utilization Rule.  Finally, the bill allows for burning or disposal of storm debris for state of emergency from April 16, 2011 to June 1, 2011.  This bill was enacted and effective April 20, 2011.

 Exempt Small Ag from Permit Req. – House Bill 162; Session Law 2011-41

 This billl exempts wastewater management systems from permit requirements for the treatment and disposal of wastewater if the water is produced from activities related to the processing of agricultural products and certain conditions are met.  All of these conditions must be met; they include:

  • The owner of the agricultural products must carry out the activities.
  • Wastewater production from these activities cannot exceed 1,000 gallons per day.
  • An animal waste management system cannot generate the wastewater.
  • Land application disposes of the wastewater.
  • Wastewater is not discharged to surface waters.
  • The wastewater disposal does not violate surface or groundwater standards.

 This bill was enacted and effective April 19, 2011.

 APA Rules: Limit Additional Costs – Senate Bill 22; Session Law 2011-13

 This bill prevents an agency from adopting a rule that results in “substantial estimated additional costs” as defined in N.C. Gen. Stat. § 150B-2(8c) unless adoption of the rule is required to respond to a serious and unforeseen threat to public safety, health or welfare, an act of the General Assembly or U.S. Congress that expressly requires the agency to adopt the rules, a change in federal or state budget policy, a federal regulation, or a court order.  The act also amends N.C. Gen. Stat. § 150B-2 by defining “substantial estimated additional costs” for agencies as, “an aggregate financial impact on all persons subject to a proposed rule of at least five hundred thousand dollars in a 12 month period;” further, it provides a list of factors for an agency to consider in analyzing costs.  This bill was enacted and effective March 25, 2011, applies to rules published in the North Carolina Register by an agency on or after that date, and expires July 1, 2012.  Senate bill 781 will repeal this law if the Governor’s veto of S 781 is overridden.

 Joint Regulatory Reform Committee – Senate Bill 17; Resolution 2011-2

 This resolution establishes the Joint Regulatory Reform Committee which has the purpose of creating a strong environment for private sector job creation by lifting the undue burden imposed by outdated, unnecessary, vague rules.  This resolution was enacted and effective February 22, 2011 and expires December 31, 2012.

 ETJ/Wake Municipal Farm Exception – Senate Bill 263; Session Law 2011-34

 This bill allows municipalities in Wake County to provide exemptions in their zoning ordinances to allow bona fide farms to obtain building permits for accessory buildings in its extraterritorial jurisdiction similar to that allowed for county zoning in N.C. Gen. Stat. 153A-340(b); this bill became effective when enacted.  House bill 168 effectively replaces this bill by creating an exemption for “bona fide farms” throughout North Carolina from a respective municipality’s jurisdiction.  This bill was enacted and effective April 12, 2011.

 Swine House Renovation/Site Limits – Senate Bill 501; Session Law 2011-118

 This bill provides for the construction or renovation of swine houses that are part of a preexisting swine farm provided that all of the following conditions are met:

  • There is no increase in the permitted capacity of the swine farm, as measured in the annual steady state live weight capacity of the swine farm.
  • There is no increase in the total permitted capacity of animal waste management systems located on the farm.
  • There is no portion of the renovated or reconstructed house that is any closer to the building or property that is the object of its siting requirement which causes a violation of the siting requirement unless the owner(s) of the property that the siting requirement directly affects give(s) written permission which is recorded with the register of deeds.
  • The house does not exist in the 100-year floodplain.

The bill was enacted and effective June 13, 2011 and applies to construction or renovations that occur on or after that date.

 Involuntary Annexation Moratorium – Senate Bill 27; Session Law 2011-173

This bill suspends certain annexations, including:

  • Kinston annexation area
  • Lexington annexation area
  • Rocky Mount annexation area
  • Wilmington annexation area
  • Ashevillle/Biltmore Lake annexation area
  • Marvin annexation area
  • Southport annexation area
  • Fayetteville Gates annexation area

To lift the suspension, the board of elections shall complete a petition to disallow the annexation process.  The board of elections must prepare petitions for property owners of the real property located within the area to sign opposing the annexation ordinance.  With various procedural requirements, the board of elections must allow 130 days after mailing the petitions to accept signatures.  If property owners of 60% of the annexation area sign the petition, the annexation shall be terminated and the municipality may not adopt a resolution for consideration of the area for annexation for 36 months.  This bill was enacted and effective June 18, 2011.

Observe July as Watermelon Month – Senate Resolution 565

This resolution encourages the citizens of this State to observe July of each year as Watermelon Month in North Carolina to recognize the health benefits of watermelon and the importance of watermelon to the agriculture industry of the State.  The resolution was enacted and effective June 14, 2011.

Conservation Easements Stewardship Funds – Senate Bill 309; Session Law 2011-209

This bill allows the governing board of any Soil and Water Conservation District to establish a special reserve fund for maintaining conservation easements.  To establish the fund, the governing board must adopt a resolution or ordinance that includes all of the following information:

  • The specific purposes of maintaining conservation easements for which the fund is created.
  • The approximate periods of time during which moneys are to be accumulated for each of those purposes.
  • The approximate amounts to be accumulated for those purposes.
  • The sources from which moneys will be derived for those purposes.

The bill describes the manner in which the special reserve fund can be funded, how those funds must be invested, and the guidelines for fund withdrawals.  This bill was enacted June 23, 2011 and becomes effective July 1, 2011

Voluntary Agriculture Districts – House Bill 406; Session Law 2011-219

This bill provides three separate changes to voluntary agriculture district requirements.  First, it removes the requirement that the property participate in the farm present-use value taxation program to be included in a voluntary agriculture district and replaces it with the requirement that the property must be engaged in agriculture to be included in a voluntary agriculture district.  Second, if any lot on the land is used for a non-farm purpose, the bill states that the lot is subject to municipal zoning requirements.  Third, the bill exempts voluntary agriculture district conservation agreements from having to be recorded at the Register of Deeds office like other conservation agreements.  This bill was enacted and effective June 23, 2011.

Clarify Water & Well Rights/Private Property – Senate Bill 676; Session Law 2011-255

This bill provides that no person shall unduly delay or refuse a well permit that can be constructed, repaired or operated under the requirements of N.C. Gen. Stat. § 87-97 and that no well which is in compliance with  N.C. Gen. Stat. § 87-97 shall be denied a permit based on local government policy discouraging or prohibiting the drilling of new wells.  Additionally, the bill expands the term “water supply well” under N.C. Gen. Stat. § 87-88(k) to include wells constructed by the landowner or lessee, appurtenant to a single family dwelling, and intended for domestic use (including farm livestock or gardens).  This bill was enacted and effective June 23, 2011.

 Employers & Local Gov’t Must Use E-Verify – House Bill 36; Session Law 2011-263

This bill requires all employers with 25 or more employees to participate in the federal E-Verify program to verify the work authorization of newly hired employees.  An exemption is provided for seasonal temporary employees who are employed for 90 or fewer days during a 12-consecutive-month period.  Counties and municipalities must also use E-Verify to verify the work authorization of new employees.  This bill was enacted June 23, 2011, and the effective date will be phased in on the following schedule:

  • October 1, 2012, for employers that employ 500 or more employees.
  • January 1, 2013, for employers that employ 100-499 employees.
  • July 1, 2013, for employees that employ 25-99 employee

Energy Crops for Biofuels Feedstocks – Senate Bill 378; Session Law 2011-198

 This bill requires the Intragency Group to establish agronomic rates to ensure proper application levels of animal waste for certain energy crops and provides broad guidelines for determining the agronomic rates.  Additionally, the Intragency Group is required to submit a report on the development and publication of the interim agronomic rates to the Commissioner of Agriculture, among others, by July 1, 2011 and a report on the development and publication of the final agronomic rates by December 1, 2014 to the Commissioner of Agriculture, among others.  This bill was enacted and effective June 23, 2011.

Amend Weight Limits for Farm Products – House Bill 468; Session Law 2011-200

This bill creates an exemption from vehicle weight limits imposed by N.C. Gen. Stat § 20-118(b) for a person hauling live poultry from the farm where the live poultry is raised to any processing facility within 150 miles of that farm.  This bill was enacted June 23, 2011 and is effective December 1, 2011, applying to offenses committed on or after the effective date. 

Codify NC Century Farms Program in DACS – Senate Bill 493; Session Law 2011-201

This bill instructs the Commissioner of the Department of Agriculture and Consumer Services to administer the North Carolina Century Farms Program, which recognizes farms in the State that the same family has continuously owned for at least 100 years.  This bill was enacted June 23, 2011 and becomes effective July 1, 2011. 

Clarify Ag Development/Preservation in DACS – Senate Bill 499; Session Law 2011-251

This bill clarifies that it is the duty of the Department of Agriculture and Consumer Services to administer and supervise the Agricultural Development and Farmland Preservation Enabling Act.  This bill was enacted and effective June 23, 2011.

Landowner Protection Act – House Bill 762; Session Law 2011-231 

This bill requires that hunters, trappers, and fishermen have written permission from a landowner, lessee, or his agent to use the land.

  • Written permission must be signed and dated within the past 12 months and carried on one’s person.
  • It is a Class 2 misdemeanor to hunt, fish, or trap on another’s land without permission.
  • If an individual has received proper written permission from an owner or his agent, but does not have the document on his person when requested, producing written permission is an affirmative defense to prosecution.

The bill also indicates means through which an owner or lessee of property may post notices.  This bill was enacted June 23, 2011, becomes effective October 1, 2011, and applies to offenses committed on or after the effective date.

Pesticide Registration Paper Reduction – Senate Bill 603; Session Law 2011-239

This bill eliminates the requirement to submit a Material Safety Data Sheet for a pesticide to the N.C. Pesticide Board when registering the pesticide.  This bill was enacted and effective June 23, 2011 and applies to applications for registration or renewals of registration filed on or after the date of its enactment.

Nat. Gas/Bond/Fee/Landowner Protect’n/Study – House Bill 242; Session Law 2011-276

This bill effects the following:

  • Increase the amount of the bond required upon registration to drill for oil or natural gas in the state;
  • Increase the fees applicable to drilling and abandoning oil or gas wells;
  • Establish provisions for the protection of landowners relative to leases for oil and gas exploration.
  • Direct the Department of Environment and Natural Resources to study the issue of oil and gas exploration in the state—specifically the use of directional and horizontal drilling and hydraulic fracturing for that purpose;
  • Direct the Department of Environment and Natural Resources to conduct at least two public hearings on the issue in which exploration for natural gas by means of directional and horizontal drilling and hydraulic fracturing may occur.

This bill was enacted and effective June 23, 2011.

REPS Credits at Cleanfields Parks – Senate Bill 484; Session Law 2011-279

This bill amends the Cleanfields Act of 2010 to allow only the first ten megawatts of biomass renewable energy generation capacity (e.g., agricultural and animal waste) to satisfy part of the quota of electric power that must be generated through use of poultry waste resources under N.C. Gen. Stat. § 62-133.8(f).  The amended provision previously enabled power companies to satisfy all of their requirements for using poultry waste resources by the use of biomass renewable energy.  Along with Senate Bill 710 (detailed immediately below) this bill effects a compromise between competing sources of renewable energy.  This bill was enacted and effective June 23, 2011. 

Poultry Waste RECs – Senate Bill 710; Session Law 2011-309

N.C. Gen Stat. § 62-133.8(f) currently requires that, beginning in 2014, at least 900,000 megawatt hours of the total electric power sold to retail electric customers in the State shall be supplied, or contracted for supply in each year, by poultry waste.  This bill amends N.C. Gen. Stat. § 62-133.8(f) to also allow renewable energy certificates (RECs) derived from the thermal energy output of combined heat and power facilities that use poultry waste as fuel to meet the requirements of the poultry waste set-aside.  This bill was enacted and effective June 27, 2011.

Domestic Fowl Stray/Commercial Poultry Lands – Senate Bill 602; Session Law 2011-313

After having received actual or constructive notice that one’s fowl is running at large, this bill would make it a Class 3 misdemeanor to:

  • Allow one’s domestic fowl to run at large on another’s property while such land is used for cultivation of grain or feedstuff, used for gardens, or used for ornamental purposes.
  • Allow one’s domestic poultry to run at large on the lands of another’s commercial poultry operation.
  • Allow one’s commercial poultry to run at large on adjoining property.

Further, if it appears that after three days of notice that a person either fails or refuses to keep his poultry on his premises, a magistrate may order any sheriff or other officer to kill the fowls when they are running at large.  This bill was enacted June 27, 2011, becomes effective December 1, 2011, and applies to offenses committed on or after the effective date.

Zoning St. of Limit/Ag. Dist. Change – House Bill 806; Session Law 2011-384

This bill affects various zoning and ordinance laws.  First, the bill clearly retains a two-month statute of limitations for challenging an ordinance adopting or amending a zoning map or approving a special use, conditional use, or conditional zoning district rezoning.  This provides landowners with finality in the use of their property following the action.  However, the bill expands the statute of limitations for challenging the validity of the text of a zoning or unified development ordinance or any provision thereof to one year after the accrual of such action.  Thus, landowners have a longer period of time to challenge unconstitutional or illegal zoning ordinances adopted by local governments.

Further, a challenge to an ordinance on the basis of an alleged defect in the adoption process must be brought within three years after the adoption of the ordinance.  Also, the bill allows for a timely appeal to the decision of an administrative officer that declares a party to be in violation of the zoning or unified development ordinance when the party appeals based on the invalidity of the ordinance.

Additionally, this bill abrogates the effect of ordinances passed under N.C. Gen. Stat. §

153-340 on single-family detached residential uses on lots greater than 10 acres in zoning districts where more than 50% of the land is used for agriculture or silvicultural purposes.  Under N.C. Gen. Stat. § 153A-335 (a)(2), the General Assembly excluded “the division of land into parcels greater than 10 acres if no street right-of-way dedication is required” from a municipality’s power to regulate the subdivision of land. In recent years, several local governments have used their zoning powers to prevent residential landowners from dividing property up into tracts larger than 10 acres to place residences on these lots through blanket prohibitions of residential uses of lots in rural or agriculture districts and creating standards similar to those used for subdivision ordinances for residential use of lots within the local government’s jurisdiction. This bill is meant to prevent local governments from running an inroad around the prohibition under N.C. Gen. Stat. § 153A-335 (a)(2).

This bill was enacted June 27, 2011 and becomes effective July 1, 2011, but does not apply to pending litigation.

Zoning/Agricultural Annexation Exemption – House Bill 168; Session Law 2011-363

 This bill relates to the definition of “bona fide farm purposes” within the North Carolina General Statutes.  First, the bill gives specific examples of items or documents that will constitute sufficient evidence that the property is being used for “bona fide farm purposes.”  Second, the bill prohibits municipal annexation of property used for “bona fide farm purposes” without the consent of the owner. Third, the bill states that property used for “bona fide farm purposes” in a municipality’s extraterritorial jurisdiction is exempt from such jurisdiction, including its zoning requirements and ordinances. This bill was enacted and effective June 27, 2011.

Bldg. Codes/Expand Equine Exemption – House Bill 329; Session Law 2011-364

 This bill expands the current exemption for farm buildings associated with equine activities from municipal building-rules to include farm buildings used for spectator events. However, if these buildings house any grandstands, bleachers or other spectator seating structures, the buildings are subject to an annual safety inspection by the applicable municipal department. The safety inspection must include evaluation of the overall safety of the spectator seating structure and the spectator seating structure’s compliance with building codes in effect when it was built.  This bill was enacted and effective June 27, 2011 and applies to all farm buildings regardless of whether the building was completed before, during, or after the signing of this bill.

 Swine in Transport/Regulate Feral Swine – House Bill 432; Session Law 2011-369

This bill prohibits the transportation of live swine unless the swine has an official form of identification that the State Veterinarian has approved for this purpose.  It also classifies all free-ranging mammals of the species Sus scrofa as “feral swine” and provides for the taking of feral swine as nongame animals.  The immediate effect of redefining feral swine as nongame animals is to eliminate a hunting season for feral swine, however, the Wildlife Resource Commission may adopt rules prescribing seasons.  The act also prohibits the removal of live feral swine from traps.  This bill was enacted on June 27, 2011; the changes to G.S. 106-798A and G.S. 106-798B, which prohibits the transportation of live, unidentified swine become effective October 1, 2012, and the remainder of this bill becomes effective on October 1, 2011.

Transfer Surplus Prop. to Retirement System – House Bill 596; Session Law 2011-373

This bill transfers surplus net proceeds from the sale of State-owned land to the Teachers’ and State Employee’s Retirement System of North Carolina.  Sections 1 and 2 of the bill alter N.C. Gen. Stat. § 146-30 which outlines the application of net proceeds from State owned lands. Under the proposed amendments, if the appraised value of a piece of State-owned real property is worth less than six million dollars, the net proceeds from the property must split between the State agency to which the property was allocated (25%), the General Fund (25%), and the Teachers’ and State Employees’ Retirement System of North Carolina (50%).  Net proceeds from State-owned real property with an appraised value of over six million dollars are deposited into the General Fund.  Further, the bill prohibits the exchange of State lands for other lands without consultation with the Joint Legislative Commission on Governmental Operations if the property is appraised for twenty-five thousand dollars or more. These sections of this bill become effective July 1, 2011 and expire January 1, 2016.

 Section 3 of the bill outlines provisions for net proceeds from the sale of State-owned land for the 2011-2013 fiscal biennium visa vi the 2011-2012 State budget (Session Law 2011-145). It states that S.L. 2011-145, Section 6.15(c) supercedes N.C. Gen. Stat. § 146-30 as amended by Sections 1 and 2 above.  Section 6.15(c) states that, “[t]he Department of Administration shall take the action necessary to effectuate the sale of State‑owned disposable assets in accordance with Section 2.2(a) of this act.”  Section 2.2(a) of S.L. 2011-145 allocates fifteen million dollars and twenty five million dollars to the General Fund for the 2011-2012 and 2012-2013 fiscal years respectively.  Subsequently, House bill 596 states that any net proceeds in excess of these amounts in the respective fiscal years shall be allocated as amended under N.C. Gen. Stat. § 146-30(a) above.  Thus, there is a two year allocation of the net proceeds of state owned lands to the General Fund that must be fulfilled each year before the amended language of House bill 596, Sections 1 and 2 allocates the net proceeds per its new structure.  Section 3 of this bill was effective June 30, 2011.

This bill was enacted June 27, 2011. 

Authorize Various Special Plates – House Bill 289; Session Law 2011-392

This bill authorizes the Division of Motor Vehicles to issue various special registration plates, including the Farmland Preservation plate. This bill was enacted and effective June 30, 2011.

Amend Environmental Laws 2011 – House Bill 119; Session Law 2011-394

This bill amends various environmental laws.  While there are numerous provisions to the bill, the two parts that are most relevant to the agriculture community are its exemption of small dams and agricultural pond dams from the Dam Safety Law of 1967 and the transfer of Clean Water Act (CWA) Section 319 Nonpoint Source Management Program Base Grant funds to the Division of Forest Resources and the Division of Soil and Water Conservation.  Summaries of these subsections are detailed below.  This bill was enacted June 30, 2011, will be effective August 30, 2011, and it became law without the Governor’s signature.

  • Modified Dam Safety Law of 1967 Exemptions

○     Dams that are less than 25 feet in height or have an impoundment capacity of less than 50 acre-feet are not subject to the Dam Safety Law of 1967.  This is an increase from 15 feet in height and 10 acre feet impoundment capacity under the previous law.

○     Dams that are constructed for providing water for agricultural use are exempted from the Dam Safety Act if a person who is a licensed engineer approved plans for the dam, supervised its construction and registered the dam at the Division of Land Resources. There is an exemption to this exemption for those dams that the Department of Environmental and Natural Resources determine to be “high hazard.”

  • Transfer of CWA Funds to Division of Forest Resources and Division of Soil and Water Conservation

○     The amount transferred shall be no less than the average annual amount of funding received by each of those two Divisions over the two most recent fiscal bienniums.

○     In the event that the amount of these funds increases or decreases in any funding cycle, the amount given to the two Divisions shall be adjusted proportionally.

○     Distribution of the funds requires consideration of water quality benefit and fair and equitable distribution based on the grant requirements and the benefit

○     The Divisions are included in a Workgroup of Nonpoint Source Agencies under the Division of Water Quality.

Part II. Vetoed Bills

Regulatory Reform Act of 2011 – Senate Bill 781

This bill alters the existing requirements for the rule-making process of agencies, places various limits on these processes, establishes a Rules Modification and Improvement Program to review existing rules, and creates new requirements to make a permanent rule.  Additionally, the bill changes the procedure for handling contested cases; specifically,  an administrative law judge, not the agency, now makes the final decision on the findings of fact and conclusions in a contested case.  With limited exceptions, the bill also prohibits an agency authorized to implement and enforce State and federal environmental laws from adopting a rule for the protection of the environment and natural resources that imposes a more restrictive standard than a federal law or rule that addresses the issue.  (Note: The State budget in Session Law 2011-145 includes a provision in Section 13.11B.(a) that prohibits the Department of Environment and Natural Resources, the Department of Labor and the Department of Agriculture and Consumer Services from adopting rules that impose more restrictive standards or limitations than those imposed by federal laws or rules that adress the issue.)  This bill has various effective dates for different sections; specifically, the effective date for the section changing the final decision making authority for contested cases is January 1, 2012 and applies to contested cases commenced on or after that date.  The Governor vetoed this bill on June 30, 2011.

June 9th, 2011

During the week of June 1, the Senate passed its approval  of the amended House budget and through a rare early Saturday meeting, the House voted 73-45 to approve the plan, followed by the Senate’s final approval.  The ratified version of House Bill 200, Appropriations Act of 2011, dated June 4, 2011, provides for the following:

1.       Transfers the Soil & Water Conservation Commission and the Division of Soil & Water Conservation from DENR to the Dept. of Agriculture and Consumer Services, including provisions to assure the uninterrupted continuation of services during and after the transfer.
2.       The Agricultural Water Resources Assistance Program (AgWRAP) was approved with a non-recurring appropriation of $1,000,000.  The program will be administered by the commission and division through the conservation districts, similar to the drought response program.
3.       The objective of the division’s Operations Review program was changed to focus strictly on voluntary technical assistance to livestock producers.  The requirement for the division to conduct annual operations review site visits for all permitted animal operations was removed.
4.       The Pilot Program for annual inspections of animal operations by division technical specialists in Brunswick, Columbus, Jones and Pender counties will end on June 30, 2011.

The Senate Appropriations Committee’s Report on the Continuation, Expansion and Capital Budgets, dated May 31, 2011, is currently being updated for technical corrections.  While there is still a possibility of additional losses through the DENR regional office cuts that have not been determined at this time, major changes between the May 31, 2011 money report and the updated money report to be released in the next couple of weeks are not anticipated.

5.       The proposed $1,197,834 reduction to the Ag Cost Share Program for “financial assistance” for practices was removed, restoring the program back up to an annual appropriation of $4.46 million.
6.       Permanently reduces matching funds by $400 per district.
7.       Permanently reduces subsistence for district supervisors by $28,000.
8.       Eliminates 12 division positions including 7 operations review/pilot program technical specialists, 3 soils positions, the Area 7 Coordinator and Public Information Officer
9.       Permanently reduces the division’s operating funds by $82,849.

Legislative bills of interest:
On June 7, the following bills are on agenda for the Senate Committee on Agriculture, Environment and Natural Resources:
·         Senate Bill 309 – Conservation Easements Stewardship Funds (authorizing soil and water conservation districts to establish and maintain special revenue funds for maintaining easements).  Primary bill sponsor is Sen. Brent Jackson.     This bill was directly supported by the NC Association of Soil & Water Conservation Districts.
·         Senate Bill 491 – Sedimentation Pollution Control Act Exemption (an agricultural exemption for activities on agricultural/forest land in cooperation with NRCS or under the authority of the Soil & Water Conservation Commission involving conservation practices to restore or enhance wetlands or to protect or improve water quality, water resources, or wildlife habitat).    Primary sponsor is Sen. David Rouzer.
·         Senate Bill 492 – Protect Landowners’ Water Rights and to Exempt Agricultural Ponds from the Dam Safety Act.  Primary sponsors are Sen. Rouzer, Sen. Jackson and Sen. Don East.

During the afternoon of June 7, the following bill is on the agenda for the House Committee on Agriculture:
·         Senate Bill 380 – Clarify the definition of “Bona Fide Farm Purposes” and to Exempt Property used for Bona Fide Farm Purposes from Municipal Zoning & Building Code Enforcement.  Primary sponsor is Sen. Jackson.  This bill was directly supported by the NC Association of Soil & Water Conservation Districts.

May 5, 2011

Budget Update:  Yesterday, the NC House of Representatives finalized and adopted its budget.  Now as the dust settles on this phase of the budget process, it is a good time to recap the activity of the last few weeks.

April 12 – The House Natural and Economic Resource (NER) committee released its proposed budget options (reference previous update).  As soon as the NER budget was released, Division of Soil and Water management was compiling program and budget impact statements.  Efforts were to justify why these positions and funds are so important  to conservation districts and to the overall soil and water conservation partnership in North Carolina.  This same bill eliminated the DENR Mooresville regional office and reduced staffing at the Asheville, Fayetteville and Raleigh regional offices.  While discussions and decisions were made, recommendations and substitute proposals were offered to hopefully head off additional reductions and gain back some of the losses incurred by the Division.

April 27 – The House Appropriations Committee adopted a proposed committee substitute for House Bill 200 that eliminated staff not matched by federal funding in all of the DENR regional offices (reference previous update).  This substitute bill eliminated six area coordinator and two soils positions.  At this point, the Division was facing a 34% staffing reduction.

April 28 – The House Appropriations committee released its report on the House Bill 200 committee substitute, including all amendments adopted on April 27.  The report reinstated two operation review technical specialist positions back into the Division budget, and eliminated two more two soils positions.  While there was no net change in number of positions lost by the Division, HB 200 brought the loss of soils positions back up to four – the same number proposed in the Governor’s budget.

May 3 - Amendment #30 was introduced from the floor and adopted by the full House.  This amendment reinstated six area coordinator positions back into the Division budget.
May 4 – HB 200 is finalized and adopted, and sent to the Senate for  consideration.  The final House budget contains the programmatic cuts noted in the April 14th update and proposes to reduce Division staff by 24% through the elimination of the following positions:  Area 7 Coordinator, Public Information Officer, 8 Operation Review Technical Specialists and 4 Soils positions.

Nothing is final at this point of the budget process.  Funding and staffing for the Division is subject to change.  The focus will now turn to the Senate as they discuss and deliberate the state budget.  The state’s budget process is very fluid and very complex.

Consolidation Update:

May 2 – The Executive Committee of the NC Association of Soil and Water Conservation Districts (Association) met by conference call and voted unanimously to support Senate Bill 229.  SB 229 proposes to transfer the Division and Soil and Water Conservation Commission from DENR to the Dept. of Agriculture and Consumer Services.

May 3 – The Senate Agriculture, Environment and Natural Resources Committee discussed SB 229 and listened to presentations by the Association leadership  and DENR management.  The committee voted unanimously to approve the bill and send to the full Senate for consideration.

May 4 – The Senate approved SB 229 and is forwarding the bill to the House for consideration.  The House committee assignment has not been made at this time.

April 28, 2011

Reclaimed Water Bill Passes!

In a rule previously approved by the Environmental Management Commission to allow use of reclaimed water, container nursery operations were prohibited from using such water unless they had a NPDES permit. House Bill 388, filed earlier this session halted this rule from going forward.  Representative Mitch Gillespie filed H268 to allow container nursery operations to use reclaimed (treated waste water) water for irrigation – thereby correcting the unfairness of last year’s EMC rule.  On Wednesday, April 20, the General Assembly ratified the bill and Governor Perdue signed the bill the same day.  To view the bill click here (SESSION LAW 2011-4) The bill also contains language making it easier to legally dispose of storm debris resulting from the recent tornadoes.

Help Needed Now

The SENATE AGRICULTURE/ENVIRONMENT/NATURAL RESOURCES Committee will in the very near future meet to discuss several water related bills that we have been following.  Please contact your Senators on the committee and ask for their support for the following bills. If you senator does not serve on this committee, ask them to support the bills when they come before them on the Senate floor.

Click here for a listing of the House-Senate Leadership committee.

Landowner Water Rights Bill (Senate Bill 492)

“Protect Landowner Water Rights”.  This is the bill that many of us have worked on to protect the ability of landowners to use water from their own property.  The bill also recognizes existing authority of the State to regulate water use in certain instances such as in Capacity Use Areas and during an Executive Order declared by the Governor.  But, except for those rare instances, the State could not prohibit landowners from using water from their property.  The bill also established what the water policy of the State is.  To view the bill click here S492.

Water & Well Rights (Senate Bill 676) (expected to be heard in committee on May 3)

Several years ago, local governments were given the authority to regulate the construction of wells, including requiring testing and permitting for constructing wells.  Since then there have been reports that occasionally local governments have refused to grant a permit to construct wells. This bill would prohibit local governments from refusing to grant a permit for conforming wells when requested.  To view click here S676

  • This legislation will preserve the state’s statutory duty to “safeguard the public welfare, safety and health and to protect and beneficially develop the groundwater resources of the State”.

 

  • The legislation will also protect landowners’ rights by clarifying that counties may not force landowners to connect to municipal water supplies when lawful wells are available, refuse to issue permits for lawful wells, or regulate lawful wells outside their jurisdiction.

 

  • The bill would allow landowners who connect to municipal water supplies to continue to use their wells for nonpotable purposes.

Conservation Easements Stewardship Funds S309

This bill would authorize the governing board of any soil and water district to establish a special reserve fund to maintain conservation easements.  To view the bill, click here S309

Sedimentation Pollution Control Act Exemption S491

This bill specifies that the agricultural use exemption from the sedimentation pollution control act permitting requirements applies to land transferred into a wetlands restoration program or water quality, water resources, or wildlife habitat enhancement program.  To view the bill, click here S491

Delineate Coastal Wetlands Riparian Buffers S232

This bill allows coastal wetlands to count as part of the required buffer in Neuse and Tar-Pamlico River Basins.  To view the bill, click here S232

 

Senate Agriculture, Environment, and Natural Resource Committee –   The committee will meet for the third time on Tuesday, May 3 to discuss SB229 which proposes to move the Division of Soil and Water Conservation and NC Soil and Water Conservation Commission from DENR to the Department of Agriculture and Consumer Services.  It is highly possible that a vote will be taken for the first time on this bill at this committee meeting.  The meeting will be at 11:00 a.m. in Room 544 of the Legislative Office Building.

House Natural and Economic Resources (NER) Appropriations Sub-Committee — After a flurry of activity related to the House NER budget options, an amendment was introduced to eliminate the general fund support for all positions in DENR regional offices that do not specifically match federal grants, as well as a 20% general fund reduction in the regional offices.  This will directly impact the division and districts by the loss of salary and operating funds for 6 additional area coordinators and 2 soil scientists currently housed in the DENR regional offices.

At this time, if the proposed committee substitute for House Bill 200 dated April 27, 2011 is approved, the House is recommending the division to lose the programmatic cuts listed in the legislative update of  April 14, 2011 (see below) along with 20 positions  (34%) of its workforce through the elimination of the following positions:

  • · 7 area coordinators
  • · 1 public information officer
  • · 10 operation review technical specialists
  • · 2 soil scientists

Once the House completes its part of the budget process, the focus will turn to the Senate as they formulate their proposed budget for the state.  The House budget proposal is likely to go to the Senate the first week in May at which time the Senate will create its own version.  The two chambers are seeking to pass a comprise measure to present to Governor Perdue by early June.

For a listing of legislative members of the NER Appropriations Committee, click here.

Senate Bill 309 —   This bill would allow SWCDs to hold easement stewardship fund for the long term and is a high priority of the Association.  The bill passed first reading in March and is currently in the Senate Committee on appropriations and Base Budget.

4/14/2011

The Senate Agriculture, Environment & Natural Resources committee met Tuesday to continue their discussion of Senate Bill 229 to transfer the division from DENR to Dept. of Agriculture & Consumer Services (DACS).  No action was taken.

Late Tuesday, the House Natural & Economic Resources (NER) appropriations subcommittee released their proposed budget options.  The following was proposed for the division:

  • Reduce Ag Cost Share by 26.83% or $1,197,834 for FY2011-12 and FY2012-13 (same as in Governor’s proposed budget)
  • Reduce matching funds by 10% ($40,000) and district supervisors’ subsistence by ($28,000) for a total of $68,000 for FY2011-12 and FY2012-13 (same as in Governor’s proposed budget)
  • Eliminate 2 filled positions and reduce various operating funds by $134,708 for FY2011-12 and FY2012-13 (same as in Governor’s proposed budget)
  • Discontinue pilot program for animal management systems, eliminating one position ($5l,880)  for FY2011-12 and FY2012-13 (same as in Governor’s proposed budget)
  • Discontinue the animal operations review program by 9 positions and operating at $578,077 for FY2011-12 and FY2012-13 (not proposed in the Governor’s budget)

The NER subcommittee also proposed substantial reductions to DENR’s regional offices.  Divisions are working with DENR management to better assess impacts and responses.  I hope to provide you a more informed update on this issue later this week.

Tuesday’s “2011-12 NER Cuts Not Taken” report include:

  • Not eliminate the division’s cooperative soil survey program (was proposed to be eliminated in governor’s budget)
  • Not transfer the division from DENR to DACS

The NER’s Special Provisions report included a proposal to establish the Agricultural Water Resources Assistance Program or AgWRAP with an initial, one-time appropriation of $1,000,000.  The program objectives are to identify opportunities to increase water use efficiency, availability and storage; implement best management practices to conserve & protect water resources and increase water storage and availability for agricultural purposes.  If approved, the program would be administered by the Soil & Water Conservation Commission through local conservation districts.

To review the House NER appropriations subcommittee reports, go to http://www.ncga.state.nc.us/

The budget process will continue through the Senate, so stay tuned.  The General Assembly leadership has indicated they would present their proposed budget to Gov. Perdue in early June.

4/12/2011

This is to provide a brief summary of the Senate Agriculture/Environment/Natural Resources Committee meeting which was held this morning.  The purpose of the meeting was to continue discussion on SB 229 (as well as other bills) which proposes transfer of the Division of Soil and Water from DENR to NC Department of Agriculture.  No vote was taken during the committee meeting and a projected date for a vote was not offered.

The only scheduled speaker before the committee was DENR Assist. Secretary David Knight.  Mr. Knight made it clear in his opening remarks that DENR opposes the transfer of soil and water to NCDA and focused his comments on two areas — functionality of districts and cost.

Functionality — Key points included the fact that districts work with ag and non-ag customers alike.  He stressed that the possibility for such a move should be examined from the angle of considering all reorganization possibilities.  He also stressed that the process should be more open, providing opportunities to glean information from the Commission and the 492 supervisors who lead and guide the local districts and their programs.  He also stressed that an earlier study concluded that there were no duplicative duties and responsibilities between NCDA and districts,

Cost — Commented that there would be significant transitional costs for both DENR and NCDA if a transfer should occur.  Mentioned the incompatibility of the computer systems and the impact on the IBEAM program which is used to manage cost share contracts, differences in procurement and personnel support processes, modifying agreements and memos of understanding involving districts, and etc.

Committee Chairman Rouser made the comment that the committee co-chairs and staff are currently looking at the pros and cons of the proposed transfer.  Sen. Kinnard suggested that the committee might consider a more comprehensive study to look at all of the issues surrounding a transfer and the reply was “we may or may not consider that”.  Sen. Rouser made the comment that there would be no significant costs associated with the transfer.

Senator Clodfelter asked who are the majority of the customers of soil and water — ag or non-ag.  Pat Harris, Division Director, was asked to respond to that question.  Pat indicated that the numbers would very according to programs but that a majority would be ag customers.  Pat agreed to gather some more specific numbers for the committee’s use.

Senator East commented that more specific numbers on customer type would be helpful.  He also stated that, in his opinion, soil and water was a better fit of NCDA.

That sort of highlights the committee meeting.  I will try to stay abreast of the legislature calendar and will attend the next meeting of the committee when SC 229 is further discussed.  I will try to pass along updates as appropriate.

Dick Fowler, Executive Director

4/10/2011

The General Assembly’s 2011 long session has been moving at a very fast pace.  Below are some bills and other items of interest….

Update on Senate Bill 229 entitled  TRANSFER DENR SOIL & WATER TO DACS. Today I presented an overview of the division and commission programs to the Senate Agriculture, Environment & Natural Resources Committee.  Senate members asked various questions and are planning to continue their discussion of the proposed transfer into next week’s committee meetings.

Session Law 2011-15 (originally proposed as Senate Bill 109), entitled SPENDING CUTS FOR THE CURRENT FISCAL YEAR authorized Governor Perdue to take necessary actions to increase the state’s general fund for the remainder of the 2010-2011 fiscal year.  The Governor identified the division’s CREP expansion funds for a one time reduction of $500,000.  At current funding levels, the division can continue to support new CREP enrollments.

Senate Bill 456, entitled AN ACT TO ALLOW A CANDIDATE TO LIST PARTY AFFILIATION OR UNAFFILIATED STATUS ON THE BALLOT IN ALL ELECTIONS proposes to allow candidates running for non partisan offices, including the soil & water conservation district, to list political party affiliation.

House Bill 354, entitled NO SUNSET FOR SWCD ANIMAL WASTE INSPECTIONS proposes to make the pilot program for inspections of animal waste management systems permanent in Columbus, Jones, Brunswick and Pender counties.  Currently the division conducts routine operation reviews and routine compliance inspections for permitted livestock operations in the pilot counties.

Senate Bill 491, entitled  SEDIMENTATION POLLUTION CONTROL ACT EXEMPTION proposes to include an exemption for activities on agricultural land or forest land in cooperation with NRCS or under the authority of SWC Commission involving the installation of conservation practices (a) to restore or enhance wetlands or (b) to protect or improve water quality, water resources or wildlife habitat.

Session Law 2011-9 (originally proposed as House Bill 123), BUSINESS ENTITY CHANGES, clarifies the ownership requirements of land at present‑use value

House Bill 454, ERC TO STUDY CONSTRUCTION ON SLOPES, directs the Environmental Resources Commission to study issues related to safe artificial slope construction in mountainous areas of the state in order to promote stable slopes for development, to reduce the likelihood of slope failures on developed or disturbed land, and to protect human safety and property.

Senate Bill 499, entitled CLARIFY AG DEVELOPMENT/PRESERVATION IN DACS clarifies that it is the duty of the Dept. of Agriculture and Consumer Services to administer and supervise the agricultural development and farmland preservation enabling act.

Senate Bill 485, FARMLAND PRESERVATION SPECIAL PLATE, authorizes the Division of Motor Vehicles to produce a special plate for farmland preservation.

House Bill 162, EXEMPT SMALL AG PROCESSING FROM PERMIT REQUIREMENTS, exempts agricultural processing activities from requirement to obtain a wastewater permit if wastewater volume is less than 1000 gallons per day, the wastewater is disposed by land application, and certain other requirements are met.

Senate Bill 492, PROTECT LANDOWNER WATER RIGHTS, reaffirms landowner rights to withdraw surface or ground water located on the landowner’s property; encourages conservation, reuse, and efficient water use; encourages increased storage capacity; and exempts agricultural ponds designed and supervised by a professional engineer from the Dam Safety Act.

Senate Bill 309, CONSERVATION EASEMENTS STEWARDSHIP FUNDS, authorizes district boards to establish a special reserve fun to be used for maintaining conservation easements.  This bill was directly supported by the NC Association of Soil & Water Conservation Districts.

House Bill 195, ETJ/CLARIFY DEFINITION OF BONA FIDE FARM, clarifies the definition of a farm, exempts farms from a municipality’s ETJ, and prohibits the annexation of farms.  This bill was also directly supported by the NC Association of Soil & Water Conservation Districts.

Senate Bill 378, ENERGY CROPS FOR BIOFUELS FEEDSTOCKS, directs the 1217 Interagency Group to establish agronomic rates for energy crops for utilization by biofuels facilities.  This bill identifies miscanthus, switchgrass, fiber sorghum, sweet sorghum and giant reed as the energy grasses identified for possible use on swine waste land application sites.

House Bill 220, WACCAMAW RIVER/ISOLATED RIVER BASIN, proposes to designate the Waccamaw river basin as an isolated river basin for purposes of certification of transfers of surface water from a river basin to an isolated river basin.

House Bill 529, entitled SWINE HOUSE RENOVATIONS/SITE LIMITS proposes to facilitate improved and operations and conditions at certain preexisting swine farms by providing for the construction or renovation of swine houses at those farms.

To download a bill or to review its status, go to http://www.ncga.state.nc.us/

(Note: The above information was compiled by Pat Harris, Division of Soil and Water Conservation Director)