IBT Reforms.

GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2025
S 1
SENATE BILL 428

Short Title: IBT Reforms. (Public)
Sponsors: Senators Daniel, Moffitt, and Hollo (Primary Sponsors).
Referred to: Rules and Operations of the Senate
March 25, 2025
*S428-v-1*
A BILL TO BE ENTITLED 1
AN ACT TO REVISE THE LAWS GOVERNING TRAN SFERS OF SURFACE WAT ER 2
BETWEEN RIVER BASINS. 3
The General Assembly of North Carolina enacts: 4
SECTION 1.(a) Subdivisions (1a) and (1b) of G.S. 143-215.22G are recodified as 5
subdivisions (1b) and (1c), respectively, of that section. 6
SECTION 1.(b) G.S. 143-215.22G, as recodified by subsection (a) of this section, 7
reads as rewritten: 8
"§ 143-215.22G. Definitions. 9
In addition to the definitions set forth in G.S. 143-212 and G.S. 143-213, the followi ng 10
definitions apply to this Part. 11
(1) "Mainstem" means that Mainstem. – That portion of a river having the same 12
name as a river basin defined in subdivision (1b) (1c) of this section. 13
"Mainstem" does not include named or unnamed tributaries. 14
(1a) Major transfer. – A new transfer between river basins greater than 30,000,000 15
gallons per day, or a modification to an existing transfer that would increase 16
the existing transfer more than 30,000,000 gallons per day. 17
(1b) "Public water system" means any Public water system. – Any unit of local 18
government or large community water system subject to the requirements of 19
G.S. 143-355(l). 20
(1c) "River basin" means any River basin. – Any of the following river basins 21
designated on the map entitled "Major River Basins and Sub-basins in North 22
Carolina" and filed in the Office of the Secretary of State on 16 April 1991. 23
The term "river basin" includes any portion of the river basin that extends into 24
another state. Any area outside North Carolina that is not included in one of 25
the river basins listed in this subdivision comprises a separate river basin. 26
… 27
(2) "Surface water" means any Surface water. – Any of the waters of the State 28
located on the land surface that are not derived by pumping from groundwater. 29
(3) "Transfer" means the Transfer. – The withdrawal, diversion, or pumping of 30
surface water from one river basin and discharge of all or any part of the water 31
in a river basin different from the origin. However, notwithstanding the basin 32
definitions in G.S. 143-215.22G(1b), the following are not transfers under this 33
Part: 34
a. The discharge of water upstream from the point where it is withdrawn. 35
General Assembly Of North Carolina Session 2025
Page 2 Senate Bill 428-First Edition
b. The discharge of water downstream from the point where it is 1
withdrawn." 2
SECTION 2. G.S. 143-215.22L reads as rewritten: 3
"§ 143-215.22L. Regulation of surface water transfers. 4
(a) Certificate Required. – No person, without first obtaining a certificate from the 5
Commission, may: 6
(1) Initiate a transfer of 2,000,000 gallons of water or more per day, calculated as 7
a daily average of a calendar month and not to exceed 3,000,000 gallons per 8
day in any one day, from one river basin to another. 9
(2) Increase the amount of an existing transfer of water from one river basin to 10
another by twenty-five percent (25%) or more above the average daily amount 11
transferred during the year ending 1 July 1993 if the total transfer including 12
the increase is 2,000,000 gallons or more per day. 13
(3) Increase an existing transfer of water from one river basin to another above 14
the amount approved by the Commissio n in a certificate issued under 15
G.S. 162A-7 prior to 1 July 1993. 16
(b) Exception. – Notwithstanding the provisions of subsection (a) of this section, a 17
certificate shall not be required to transfer water from one river basin to another up to the full 18
capacity of a facility to transfer water from one basin to another if the facility was in existence 19
or under construction on 1 July 1993. 20
(c) Notice of Intent to File a Petition. – An applicant shall prepare a notice of intent to 21
file a petition that includes a nontechnical description of the applicant's request and request, an 22
identification of the proposed water source. source, and a preliminary description of alternatives 23
to the transfer considered by the applicant that includes an estimate of the costs of those 24
alternatives. 25
(c1) Hearing and Public Notice on Notice of Intent and Scope. – Within 90 days after the 26
applicant files a notice of intent to file a petition, the applicant Commission shall hold at least 27
two public hearings at the applicant 's expense at which the applicant shall provide information 28
to interested parties and the public regarding the nature and size of the proposed transfer, and the 29
Commission shall receive public comment on the scope of the environmen tal documents. The 30
Commission shall also hold at least one public meeting of these public meetings in the source 31
river basin upstream from the proposed point of withdrawal, withdrawal and at least one public 32
meeting in the source river basin downstream from the proposed point of withdrawal, and at least 33
one public meeting in the receiving river basin to provide information to interested parties and 34
the public regarding the nature and extent of the proposed transfer and to receive comment on 35
the scope of the environmental documents. withdrawal. In scheduling the meetings, the 36
Commission shall consult with the board of commissioners of each county in the source river 37
basin to identify a venue of sufficient size to accommodate anticipated attendance. Written notice 38
of the public meetings shall be provided at least 30 days before the public meetings. At the time 39
the applicant Commission gives notice of the public meetings, the applicant Commission shall 40
request comment on the alternatives and issues that should be addressed in the environmental 41
documents required by this section. The applicant Commission shall accept written comment on 42
the scope of the environmental documents for a minimum of 30 d ays following the last public 43
meeting. The applicant may hold other public meetings in addition to those required by this 44
subsection. Notice of the public meetings and opportunity to comment on the scope of the 45
environmental documents shall be provided as follows: 46
(1) By publishing notice in the North Carolina Register. 47
(2) By publishing notice in a newspaper of general circulation in: 48
a. Each county in this State located in whole or in part of the area of the 49
source river basin upstream from the proposed point of withdrawal. 50
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Senate Bill 428-First Edition Page 3
b. Each city or county located in a state located in whole or in part of the 1
surface drainage basin area of the source river basin that also falls 2
within, in whole or in part, the area denoted by one of the following 3
eight-digit catalog ing units as organized by the United States 4
Geological Survey: 5
03050105 (Broad River: NC and SC); 6
03050106 (Broad River: SC); 7
03050107 (Broad River: SC); 8
03050108 (Broad River: SC); 9
05050001 (New River: NC and VA); 10
05050002 (New River: VA and WV); 11
03050101 (Catawba River: NC and SC); 12
03050103 (Catawba River: NC and SC); 13
03050104 (Catawba River: SC); 14
03010203 (Chowan River: NC and VA); 15
03010204 (Chowan River: NC and VA); 16
06010105 (French Broad River: NC and TN); 17
06010106 (French Broad River: NC and TN); 18
06010107 (French Broad River: TN); 19
06010108 (French Broad River: NC and TN); 20
06020001 (Hiwassee River: AL, GA, TN); 21
06020002 (Hiwassee River: GA, NC, TN); 22
06010201 (Little Tennessee River: TN); 23
06010202 (Little Tennessee River: TN, GA, and NC); 24
06010204 (Little Tennessee River: NC and TN); 25
03060101 (Savannah River: NC and SC); 26
03060102 (Savannah River: GA, NC, and SC); 27
03060103 (Savannah River: GA and SC); 28
03060104 (Savannah River: GA); 29
03060105 (Savannah River: GA); 30
03040203 (Lumber River: NC and SC); 31
03040204 (Lumber River: NC and SC); 32
03040206 (Lumber River: NC and SC); 33
03040207 (Lumber River: NC and SC); 34
03010205 (Albemarle Sound: NC and VA); 35
06020003 (Ocoee River: GA, NC, and TN); 36
03010101 (Roanoke River: VA); 37
03010102 (Roanoke River: NC and VA); 38
03010103 (Roanoke River: NC and VA); 39
03010104 (Roanoke River: NC and VA); 40
03010105 (Roanoke River: VA); 41
03010106 (Roanoke River: NC and VA); 42
06010102 (Watauga River: TN and VA); 43
06010103 (Watauga River: NC and TN); 44
03040101 (Yadkin River: VA and NC); 45
03040104 (Yadkin River: NC and SC); 46
03040105 (Yadkin River: NC and SC); 47
03040201 (Yadkin River: NC and SC); 48
03040202 (Yadkin River: NC and SC). 49
c. Each county in this State located in whole or in part of the area of the 50
source river basin downstream from the proposed point of withdrawal. 51
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d. Any area in the State in a river basin for which the source river basin 1
has been identified as a future source of water in a local water supply 2
plan prepared pursuant to G.S. 143-355(l). 3
e. Each county in the State located in whole or in part of the receiving 4
river basin. 5
(3) By giving notice by first-class mail or electronic mail to each of the following: 6
a. The board of commissioners of each county in this State or the 7
governing body of any county or city that is politically independent of 8
a county in any state that is located entirely or partially within the 9
source river basin of the proposed transfer and that also falls within, in 10
whole or in part, the area denoted by one of the eight -digit cataloging 11
units listed in sub-subdivision b. of subdivision (2) of this subsection. 12
b. The board of commissioners of each county in this State or the 13
governing body of any county or city that is politically independent of 14
a county in any state that is located entirely or partially within the 15
receiving river basin of the proposed transfer and that also falls within, 16
in whole or in part, the area denoted by one of the eight -digit 17
cataloging units listed in sub -subdivision b. of subdivision (2) of this 18
subsection. 19
c. The governing body of any public water system that withdraws water 20
upstream or downstream from the withdrawal point of the proposed 21
transfer. 22
d. If any portion of the source or receiving river basins is located in 23
another state, all state water management or use agencies, 24
environmental protection agencies, and the office of the governor in 25
that state upstream or downstream from the withdrawal point of the 26
proposed transfer. 27
e. All persons who have registered a water withdrawal or transfer from 28
the proposed source river basin under this Part or under similar law in 29
an another state. 30
f. All persons who hold a certificate for a transfer of water from the 31
proposed source river basin under this Part or under similar law in an 32
another state. 33
g. All persons who hold a National Pollutant Di scharge Elimination 34
System (NPDES) wastewater discharge permit for a discharge of 35
100,000 gallons per day or more upstream or downstream from the 36
proposed point of withdrawal. 37
h. To any other person who submits to the applicant a written request to 38
receive all notices relating to the petition. 39
(d) Environmental Documents. – Except as provided in this subsection, the definitions 40
set out in G.S. 113A-9 apply to this section. Notwithstanding the thresholds for significant 41
expenditure of public monies or use of public land set forth in G.S. 113A-9, the Department shall 42
conduct a study of the environmental impacts of any proposed transfer of water for which a 43
certificate is required under this section. The study shall meet all of the requirements set forth in 44
G.S. 113A-4 and rules adopted pursuant to G.S. 113A-4. Notwithstanding G.S. 113A-4(2), the 45
study shall include secondary and cumulative impacts. An environmental assessment shall be 46
prepared for any petition for a certificate under this section. The determina tion of whether an 47
environmental impact statement shall also be required shall be made in accordance with the 48
provisions of Article 1 of Chapter 113A of the General Statutes; except that an environmental 49
impact statement shall be prepared for every propose d transfer of water from one major river 50
basin to another for which a certificate is required under this section. The applicant who petitions 51
General Assembly Of North Carolina Session 2025
Senate Bill 428-First Edition Page 5
the Commission for a certificate under this section shall pay the cost of special studies necessary 1
to comply with Article 1 of Chapter 113A of the General Statutes. An environmental impact 2
statement prepared pursuant to this subsection shall include all of the following: 3
(1) A comprehensive analysis of the impacts that would occur in the source river 4
basin and the receiving river basin if the petition for a certificate is granted. 5
(2) An evaluation of alternatives to the proposed interbasin transfer, including 6
water supply sources that do not require an interbasin transfer and use of water 7
conservation measures. 8
(3) A description of measures to mitigate any adverse impacts that may arise from 9
the proposed interbasin transfer. 10
(4) With respect to petitions for certificates for a major transfer, a demonstration 11
that the petitioner, if the petitioner owns or operates a drinking water system, 12
has a water loss ratio of less than fifteen percent (15%). The Commission shall 13
specify by rule the form and manner for calculating and presenting the water 14
loss ratio. 15
(e) Public Hearing on the Draft Environmental Document. – The Commission shall hold 16
a public hearing on the draft environmental document for a proposed interbasin transfer after 17
giving at least 30 days' written notice of the hearing in the Environmental Bulletin and as 18
provided in subdivisions (2) and (3) of subsecti on (c) of this section. The notice shall indicate 19
where a copy of the environmental document can be reviewed and the procedure to be followed 20
by anyone wishing to submit written comments and questions on the environmental document. 21
The Commission shall prepare a record of all comments and written responses to questions posed 22
in writing. The record shall include complete copies of scientific or technical comments related 23
to the potential impact of the interbasin transfer. The Commission shall accept written comment 24
on the draft environmental document for a minimum of 30 days following the last public hearing. 25
The applicant who petitions the Commission for a certificate under this section shall pay the costs 26
associated with the notice and public hearing on the draft environmental document. 27
(f) Determination of Adequacy of Environmental Document. – The Commission shall 28
not act on any petition for an interbasin transfer until the Commission has determined that the 29
environmental document is complete and adequate. A decision on the adequacy of the 30
environmental document is subject to review in a contested case on the decision of the 31
Commission to issue or deny a certificate under this section. 32
(g) Petition. – An applicant for a certificate shall petition the Commiss ion for the 33
certificate. The petition shall be in writing and shall include all of the following: 34
(1) A general description of the facilities to be used to transfer the water, including 35
current and projected areas to be served by the transfer, current and projected 36
capacities of intakes, and other relevant facilities. 37
(2) A description of all the proposed consumptive and nonconsumptive uses of 38
the water to be transferred. 39
(3) A description of the water quality of the source river and receiving river, 40
including information on aquatic habitat for rare, threatened, and endangered 41
species; in-stream flow data for segments of the source and receiving rivers 42
that may be affected by the transfer; and any waters that are impaired pursuant 43
to section 303(d) of the federal Clean Water Act (33 U.S.C. § 1313(d)). 44
(4) A description of the water conservation measures used by the applicant at the 45
time of the petition and any additional water conservation measures that the 46
applicant applicant: (i) could implement to eliminat e or reduce the need for 47
the requested transfer and (ii) will implement if the certificate is granted. 48
(5) A description of all sources of water within the receiving river basin, including 49
surface water impoundments, groundwater wells, reinjection storage, and 50
purchase of water from another source within the river basin, that is a 51
General Assembly Of North Carolina Session 2025
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practicable alternative to the proposed transfer that would meet the applicant's 1
water supply needs. The description of water sources shall include sources 2
available at the time o f the petition for a certificate and any planned or 3
potential additional water sources. An applicant shall also provide analyses 4
of: (i) water treatment infrastructure that could be constructed or otherwise 5
employed to render sources of water within the re ceiving river basin at the 6
time of the petition sufficient for the applicant 's water supply needs, thereby 7
eliminating or reducing the need for the requested transfer and (ii) potential 8
water sources that could be developed that would eliminate or reduce the need 9
for the requested transfer, including the establishment or expansion of water 10
supply reservoirs or other water supply resources in the receiving river basin. 11
(6) A description of water transfers and withdrawals registered under 12
G.S. 143-215.22H or included in a local water supply plan prepared pursuant 13
to G.S. 143-355(l) from the source river basin, including transfers and 14
withdrawals at the time of the petition for a certificate and any planned or 15
reasonably foreseeable transfers or withdrawals by a public water system with 16
service area located within the source river basin. 17
(7) A demonstration that the proposed transfer, if added to all other transfers and 18
withdrawals required to be registered under G.S. 143-215.22H or included in 19
any local water s upply plan prepared by a public water system with service 20
area located within the source basin pursuant to G.S. 143-355(l) from the 21
source river basin at the time of the petition for a certificate, would not reduce 22
the amount of water available for use in the source river basin to a degree that 23
would impair existing uses, pursuant to the antidegradation policy set out in 24
40 Code of Federal Regulation § 131.12 (Antidegradation Policy) (1 July 2006 25
Edition) and the statewide antidegradation policy adopted pursuant thereto, or 26
existing and planned consumptive and nonconsumptive uses of the water in 27
the source river basin. If the proposed transfer would impact a reservoir within 28
the source river basin, the demonstration must include a finding that the 29
transfer would not result in a water level in the reservoir that is inadequate to 30
support existing uses of the reservoir, including recreational uses. 31
(8) The applicant's future water supply needs and the present and reasonably 32
foreseeable future water supply needs for public water systems with service 33
area located within the source river basin. The analysis of future water supply 34
needs shall include agricultural, recreational, and industrial uses, and electric 35
power generation. Local water supply plans prepared purs uant to 36
G.S. 143-355(l) for water systems with service area located within the source 37
river basin shall be used to evaluate the projected future water needs in the 38
source river basin that will be met by public water systems. 39
(9) The applicant's water supply plan prepared pursuant to G.S. 143-355(l). If the 40
applicant's water supply plan is more than two years old at the time of the 41
petition, then the applicant shall include with the petition an updated water 42
supply plan. 43
(10) Any other information deemed nec essary by the Commission for review of 44
the proposed water transfer. 45
(h) Settlement Discussions. – Upon the request of the applicant, any interested party, or 46
the Department, or upon its own motion, the Commission may appoint a mediation officer. The 47
mediation officer may be a member of the Commission, an employee of the Department, or a 48
neutral third party but shall not be a hearing officer under subsections (e) or (j) of this section. 49
The mediation officer shall make a reasonable effort to initiate settlem ent discussions between 50
the applicant and all other interested parties. Evidence of statements made and conduct that 51
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occurs in a settlement discussion conducted under this subsection, whether attributable to a party, 1
a mediation officer, or other person shall not be subject to discovery and shall be inadmissible in 2
any subsequent proceeding on the petition for a certificate. The Commission may adopt rules to 3
govern the conduct of the mediation process. 4
(i) Draft Determination. – Within 90 days after the Com mission determines that the 5
environmental document prepared in accordance with subsection (d) of this section is adequate 6
or the applicant submits its petition for a certificate, whichever occurs later, the Commission 7
shall issue a draft determination on whether to grant the certificate. The draft determination shall 8
be based on the criteria set out in this section and shall include the conditions and limitations, 9
findings of fact, and conclusions of law that would be required in a final determination. Noti ce 10
of the draft determination shall be given as provided in subsection (c) of this section. 11
(j) Public Hearing on the Draft Determination. – Within 60 days of the issuance of the 12
draft determination as provided in subsection (i) of this section, the Commission shall hold public 13
hearings on the draft determination. At least one hearing shall be held in the affected area of the 14
source river basin, and at least one hearing shall be held in the affected area of the receiving river 15
basin. In determining wh ether more than one public hearing should be held within either the 16
source or receiving river basins, the Commission shall consider the differing or conflicting 17
interests that may exist within the river basins, including the interests of both upstream and 18
downstream parties potentially affected by the proposed transfer. The public hearings shall be 19
conducted by one or more hearing officers appointed by the Chair of the Commission. The 20
hearing officers may be members of the Commission or employees of the Dep artment. The 21
Commission shall give at least 30 days' written notice of the public hearing as provided in 22
subsection (c) of this section. The Commission shall accept written comment on the draft 23
determination for a minimum of 30 days following the last public hearing. The Commission shall 24
prepare a record of all comments and written responses to questions posed in writing. The record 25
shall include complete copies of scientific or technical comments related to the potential impact 26
of the interbasin transfer. The applicant who petitions the Commission for a certificate under this 27
section shall pay the costs associated with the notice and public hearing on the draft 28
determination. 29
(k) Final Determination: Factors to be Considered. – In determining whether a certificate 30
may be issued for the transfer, the Commission shall specifically consider each of the following 31
items and state in writing its findings of fact and conclusions of law with regard to each item: 32
(1) The necessity and reasonableness of the amount of surface water proposed to 33
be transferred and its proposed uses. 34
(2) The present and reasonably foreseeable future detrimental effects on the 35
source river basin, including present and future effects on public, industrial, 36
economic, recreational, and agricul tural water supply needs, wastewater 37
assimilation, water quality, fish and wildlife habitat, electric power 38
generation, navigation, and recreation. Local water supply plans for public 39
water systems with service area located within the source river basin prepared 40
pursuant to G.S. 143-355(l) shall be used to evaluate the projected future 41
water needs in the source river basin that will be met by public water systems. 42
Information on projected future water needs for public water systems with 43
service area located within the source river basin that is more recent than the 44
local water supply plans may be used if the Commission finds the information 45
to be reliable. The determination shall include a specific finding as to 46
measures that are necessary or advisable to mi tigate or avoid detrimental 47
impacts on the source river basin. 48
(3) The cumulative effect on the source major river basin of any water transfer or 49
consumptive water use that, at the time the Commission considers the petition 50
for a certificate is occurring, is authorized under this section, or is projected 51
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in any local water supply plan for public water systems with service area 1
located within the source river basin that has been submitted to the 2
Department in accordance with G.S. 143-355(l). 3
(4) The present and reasonably foreseeable future beneficial and detrimental 4
effects on the receiving and source river basin, basins, including present and 5
future effects on public, industrial, economic, recreational, and agricultural 6
water supply needs, wastewater assimilation, water quality, fish and wildlife 7
habitat, electric power generation, navigation, and recreation. Local water 8
supply plans prepared pursuant to G.S. 143-355(l) that affect the receiving 9
river basin shall be used to evaluate the projected futur e water needs in the 10
receiving river basin that will be met by public water systems. Information on 11
projected future water needs that is more recent than the local water supply 12
plans may be used if the Commission finds the information to be reliable. The 13
determination shall include a specific finding as to measures that are necessary 14
or advisable to mitigate or avoid detrimental impacts on the receiving river 15
basin.basin, and whether drought mitigation and resiliency infrastructure 16
improvements in the source basin are necessary to avoid detrimental impacts 17
to affected communities in the source basin during droughts and other 18
low-flow conditions. If the Commission finds that drought mitigation and 19
resiliency infrastructure improvements are necessary, the Comm ission is 20
authorized to make the funding of such improvements a condition of the 21
certificate issued under this section. 22
(5) The availability of reasonable alternatives to the proposed transfer, including 23
the potential capacity of alternative sources of wat er, the potential of each 24
alternative to reduce the amount of or avoid the proposed transfer, probable 25
costs, and environmental impacts. In considering alternatives, the 26
Commission is not limited to consideration of alternatives that have been 27
proposed, st udied, or considered by the applicant. The determination shall 28
include a all of the following: 29
a. A specific finding as to why the applicant's need for water cannot be 30
satisfied by alternatives within the receiving basin, including unused 31
capacity under a transfer for which a certificate is in effect or that is 32
otherwise authorized by law at the time the applicant submits the 33
petition. The determination shall consider the 34
b. The extent to which access to potential sources of surface water or 35
groundwater within the receiving river basin is no longer available due 36
to depletion, contamination, or the declaration of a capacity use area 37
under Part 2 of Article 21 of Chapter 143 of the General Statutes. The 38
determination shall consider the 39
c. The feasibility of th e applicant's purchase of water from other water 40
suppliers within the receiving basin and of the transfer of water from 41
another sub-basin within the receiving major river basin. Except in 42
circumstances of technical or economic infeasibility or adverse 43
environmental impact, the Commission's determination as to 44
reasonable alternatives shall give preference to alternatives that would 45
involve a transfer from one sub -basin to another within the major 46
receiving river basin over alternatives that would involve a t ransfer 47
from one major river basin to another major river basin. 48
(5a) With respect to major transfers, the extent to which the applicant has 49
demonstrated the capacity to maintain the water loss ratio in its water system 50
at a level below fifteen percent (15%) for the duration of the certificate . The 51
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Commission must also specifically find that the applicant has submitted 1
sufficient evidence that, at the time of the petition, the applicant's water loss 2
ratio, as determined under subdivision (d)(4) of this section, is less than fifteen 3
percent (15%). 4
(6) If applicable to the proposed project, the applicant's present and proposed use 5
of impoundment storage capacity to store water during high-flow periods for 6
use during low -flow periods and the applicant's right of withdrawal under 7
G.S. 143-215.44 through G.S. 143-215.50. 8
(7) If the water to be withdrawn or transferred is stored in a multipurpose reservoir 9
constructed by the United States Army Corps of Engineers, the purposes and 10
water storage allocations established for the reservoir at the time the reservoir 11
was authorized by the Congress of the United States. 12
(8) Whether the service area of the applicant is located in both the source river 13
basin and the receiving river basin. 14
(9) Any other facts and circumstances that are reasonably necessary to carry out 15
the purposes of this Part. 16
(l) Final Determination: Information to be Considered. – In deter mining whether a 17
certificate may be issued for the transfer, the Commission shall consider all of the following 18
sources of information: 19
(1) The petition. 20
(2) The environmental document prepared pursuant to subsection (d) of this 21
section. 22
(3) All oral and w ritten comment and all accompanying materials or evidence 23
submitted pursuant to subsections (e) and (j) of this section. 24
(4) Information developed by or available to the Department on the water quality 25
of the source river basin and the receiving river basi n, including waters that 26
are identified as impaired pursuant to section 303(d) of the federal Clean 27
Water Act (33 U.S.C. § 1313(d)), that are subject to a total maximum daily 28
load (TMDL) limit under subsections (d) and (e) of section 303 of the federal 29
Clean Water Act, or that would have their assimilative capacity impaired if 30
the certificate is issued. 31
(5) Any other information that the Commission determines to be relevant and 32
useful. 33
(m) Final Determination: Burden and Standard of Proof; Specific Findings . – The 34
Commission shall grant a certificate for a water transfer if the Commission finds that the 35
applicant has established by a preponderance of the evidence all of the following: 36
(1) The benefits of the proposed transfer outweigh the detriments of the proposed 37
transfer. In making this determination, the Commission shall be guided by the 38
approved environmental document and the policy set out in subsection (t) of 39
this section. 40
(2) The detriments have been or will be mitigated to the maximum degree 41
practicable. 42
(3) The amount of the transfer does not exceed the amount of the projected 43
shortfall under the applicant's water supply plan after first taking into account 44
all other sources of water that are available to the applicant. 45
(3a) Denying the certificate w ill result in the applicant incurring infrastructure 46
costs that would result in a significant increase in utility rates and cause a 47
financial hardship for the applicant. For purposes of this subdivision, an 48
increase in utility rates is significant if it results in the applicant's utility rates 49
falling within the highest twenty-five percent (25%) among all utilities in the 50
State. 51
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(4) There are no reasonable alternatives to the proposed transfer. 1
(n) Final Determination: Certificate Conditions and Limitations. – The Commission may 2
grant the certificate in whole or in part, or deny the certificate. The Commission may impose any 3
conditions or limitations on a certificate that the Commission finds necessary to achieve the 4
purposes of this Part including a limit on the period for which the certificate is valid. The 5
conditions and limitations shall include any mitigation measures p roposed by the applicant to 6
minimize any detrimental effects within the source and receiving river basins. In addition, the 7
certificate shall require all of the following conditions and limitations: 8
(1) A water conservation plan that specifies the water conservation measures that 9
will be implemented by the applicant in the receiving river basin to ensure the 10
efficient use of the transferred water. Except in circumstances of technical or 11
economic infeasibility or adverse environmental impact, the water 12
conservation plan shall provide for the mandatory implementation of water 13
conservation measures by the applicant that equal or exceed the most stringent 14
water conservation plan implemented by a public water system that withdraws 15
water from the source river basin. 16
(2) A drought management plan that specifies how the transfer shall be managed 17
to protect the source river basin during drought conditions or other 18
emergencies that occur within the source river basin. Except in circumstances 19
of technical or economic infeasibility or adverse environmental impact, this 20
drought management plan shall include mandatory reductions in the permitted 21
amount of the transfer based on the severity and duration of a drought 22
occurring within the source river basin and shall provide for the mandatory 23
implementation of a drought management plan by the applicant that equals or 24
exceeds the most stringent water conservation plan implemented by a public 25
water system that withdraws water from the source river basin. 26
(3) The maximum amount of water that may be transferred, calculated as a daily 27
average of a calendar month, and methods or devices required to be installed 28
and operated that measure the amount of water that is transferred. 29
(4) A provision that the Commission may amend a certific ate to reduce the 30
maximum amount of water authorized to be transferred whenever it appears 31
that an alternative source of water is available to the certificate holder from 32
within the receiving river basin, including, but not limited to, the purchase of 33
water from another water supplier within the receiving basin or to the transfer 34
of water from another sub-basin within the receiving major river basin. 35
(5) A provision that the Commission shall amend the certificate to reduce the 36
maximum amount of water author ized to be transferred if the Commission 37
finds that the applicant's current projected water needs are significantly less 38
than the applicant's projected water needs at the time the certificate was 39
granted. 40
(6) A requirement that the certificate holder repor t the quantity of water 41
transferred during each calendar quarter. The report required by this 42
subdivision shall be submitted to the Commission no later than 30 days after 43
the end of the quarter. 44
(7) Except as provided in this subdivision, a provision that the applicant will not 45
resell the water that would be transferred pursuant to the certificate to another 46
public water system. This limitation shall not apply in the case of a proposed 47
resale or transfer among public water systems within the receiving river basin 48
as part of an interlocal agreement or other regional water supply arrangement, 49
provided that each participant in the interlocal agreement or regional water 50
supply arrangement is a co-applicant for the certificate and will be subject to 51
General Assembly Of North Carolina Session 2025
Senate Bill 428-First Edition Page 11
all the terms , conditions, and limitations made applicable to any lead or 1
primary applicant. 2
(8) With respect to a new or modified transfer that is a major transfer, provisions 3
requiring that (i) the term of the certificate is 20 years and may not be renewed 4
or extended and (ii) that the petitioner reserve no less than ten percent (10%) 5
of gross revenues from its water and wastewater operations for the duration of 6
the certificate to a fund that shall be used only for the planning, permitting, 7
and construction of water treatment facilities or other water or wastewater 8
infrastructure in the source basin that will reduce the total transfer below 9
15,000,000 gallons per day. 10
(o) Administrative and Judicial Review. – Administrative and judicial review of a final 11
decision on a petition for a certificate under this section shall be governed by Chapter 150B of 12
the General Statutes. 13
… 14
(r) Relationship to Federal Law. – The substantive restrictions, conditions, and 15
limitations upon surface water transfers authorized in this se ction may be imposed pursuant to 16
any federal law that permits the State to certify, restrict, or condition any new or continuing 17
transfers or related activities licensed, relicensed, or otherwise authorized by the federal 18
government. This section shall govern the transfer of water from one river basin to another unless 19
preempted by federal law. 20
(s) Planning Requirements. – When any transfer for which a certificate was issued under 21
this section equals or exceeds eighty percent (80%) of the maximum amount aut horized in the 22
certificate, the applicant shall submit to the Department a detailed plan that specifies how the 23
applicant intends to address future foreseeable water needs. If the applicant is required to have a 24
local water supply plan, then this plan shal l be an amendment to the local water supply plan 25
required by G.S.143 -355(l). When the transfer equals or exceeds ninety percent (90%) of the 26
maximum amount authorized in the certificate, the applicant shall begin implementation of the 27
plan submitted to the Department. 28
(t) Statement of Policy. – It is the public policy of the State to maintain, protect, and 29
enhance water quality within North Carolina. It is the public policy of this State that the 30
reasonably foreseeable future water needs of a public water s ystem with its service area located 31
primarily in the receiving river basin are subordinate to the reasonably foreseeable future water 32
needs of a public water system with its service area located primarily in the source river basin. 33
Further, it is the public policy of the State that the cumulative impact of transfers from a source 34
river basin shall not result in a violation of the antidegradation policy set out in 40 Code of 35
Federal Regulations § 131.12 (1 July 2006 Edition) and the statewide antidegradation policy 36
adopted pursuant thereto. 37
(u) Repealed by Session Laws 2013-388, s. 2, effective August 23, 2013. 38
(v) Modification of Certificate. – A certificate may be modified as provided in this 39
subsection: 40
(1) The Commission or the Department may make any of the following 41
modifications to a certificate after providing electronic notice to persons who 42
have identified themselves in writing as interested parties: 43
a. Correction of typographical errors. 44
b. Clarification of existing conditions or language. 45
c. Updates, requested by the certificate holder, to a conservation plan, 46
drought management plan, or compliance and monitoring plan. 47
d. Modifications requested by the certificate holder to reflect altered 48
requirements due to the amendment of this section. 49
General Assembly Of North Carolina Session 2025
Page 12 Senate Bill 428-First Edition
(2) A per son who holds a certificate for an interbasin transfer of water may 1
request that the Commission modify the certificate. The request shall be 2
considered and a determination made according to the following procedures: 3
a. The certificate must have been issued pursuant to G.S. 162A-7, 4
143-215.22I, or 143 -215.22L and the certificate holder must be in 5
substantial compliance with the certificate. 6
b. The certificate holder shall file a notice of intent to file a request for 7
modification that includes a nontechnical description of the certificate 8
holder's request and identification of the proposed water source. 9
c. The certificate holder shall prepare an environmental document 10
pursuant to subsection (d) of this section, except that an environmental 11
impact statement sh all not be required for the modification of a 12
certificate for a transfer that is not a major transfer unless it would 13
otherwise be required by Article 1 of Chapter 113A of the General 14
Statutes. 15
d. Upon determining that the documentation submitted by the certificate 16
holder is adequate to satisfy the requirements of this subsection, the 17
Department shall publish a notice of the request for modification in the 18
North Carolina Register and shall hold a public hearing at a location 19
convenient to both the source an d receiving river basins. The 20
Department shall provide written notice of the request for the 21
modification and the public hearing in the Environmental Bulletin, a 22
newspaper of general circulation in the source river basin, a newspaper 23
of general circulation in the receiving river basin, and as provided in 24
subdivision (3) of subsection (c) of this section. The certificate holder 25
who petitions the Commission for a modification under this 26
subdivision shall pay the costs associated with the notice and public 27
hearing. 28
e. The Department shall accept comments on the requested modification 29
for a minimum of 30 days following the public hearing. 30
f. The Commission or the Department may require the certificate holder 31
to provide any additional information or documentation it deems 32
reasonably necessary in order to make a final determination. 33
g. The Commission shall make a final determination whether to grant the 34
requested modification based on the factors set out in subsection (k) 35
of this section, information provided by the certificate holder, and any 36
other information the Commission deems relevant. The Commission 37
shall state in writing its findings of fact and conclusions of law with 38
regard to each factor. 39
h. The Commission shall grant the requested modification if it finds that 40
the certificate holder has established by a preponderance of the 41
evidence that the requested modification satisfies the requirements of 42
subsection (m) of this section. The Commission may grant the 43
requested modification in whole or in part, or d eny the request, and 44
may impose such limitations and conditions on the modified certificate 45
as it deems necessary and relevant to the modification. 46
i. The Commission shall not grant a request for modification if the 47
modification would result in the transfe r of water to an additional 48
major river basin. 49
j. The Commission shall not grant a request for modification if the 50
modification would be inconsistent with the December 3, 2010 51
General Assembly Of North Carolina Session 2025
Senate Bill 428-First Edition Page 13
Settlement Agreement entered into between the State of North 1
Carolina, the State of South Carolina, Duke Energy Carolinas, and the 2
Catawba River Water Supply Project. 3
…." 4
SECTION 3. This act is effective when it becomes law and applies to any petitions 5
for a certificate to transfer surface water pending on that date or submitted after that date. 6