1986 Voluntary Program
1989 Ratification of House Bill 156
1990 Public Meetings
1992 Reclassifications and Rules
1993-94 Local Government Ordinances Due
1996 N.C. Court of Appeals rules WSWP Act unconstitutional
1997 N.C. Supreme Court overturns N.C. Court of Appeals ruling
The N.C. Environmental Management Commission and the Department of Environmental Quality have administered a Water Supply Protection Program since 1986. Initially, the program was administered voluntarily by counties and municipalities pursuing measures to protect their water supplies. The measures included limitations on the number and type of wastewater discharges allowed in the water supply watersheds. These limits were administered by the then Division of Water Quality, and in turn, local governments would adopt and enforce land use control ordinances to protect surface waters from stormwater runoff.
Over time, it became apparent that minimum statewide water supply protection measures were necessary, especially where multiple local governments had land use jurisdiction within a single water supply watershed. In 1989, the N.C. General Assembly ratified the Water Supply Watershed Protection Act (the Act), codified as General Statutes 143-214.5 and 143-214.6. The Act mandated the state Environmental Management Commission to adopt minimum statewide water supply protection standards by Jan. 1, 1991 and to reclassify all existing surface water supply watersheds to the appropriate classification by Jan. 1, 1992. These dates were modified by the General Assembly in 1991.
Over 40 informational meetings and workshops were conducted across the state to present the requirements of the Water Supply Watershed Protection Act and the proposed water supply protection rules. Eight public hearings on the Rules were held across the state in August of 1990 and were attended by over 800 people, with 160 providing oral comments. In addition, over 1600 pages of written comments were received. The Environmental Management Commission adopted the Rules in December 1990 in compliance with the Jan. 1, 1991 deadline. However, since surface water supplies had not yet been reclassified, the commission postponed the effective date of implementation.
Division staff worked with local governments in determining the location of all surface water intakes and existing land use within the water supply watersheds. This information, in conjunction with information on the types and location of wastewater discharges, was used to determine the appropriate classification for the 208 surface water supplies in the state. Twelve public hearings were held on the reclassifications during August 1991 to receive public comments. The commission also decided to bring the adopted Water Supply Watershed Protection Rules with proposed modifications back to public hearing. More than 2,400 people attended the public hearings, with more than 400 providing oral comments. Over 3,000 written comments were received. The final version of the Water Supply Watershed Protection Rules was effective Feb. 13, 1992. The Environmental Management Commission reclassified all of the surface water supplies on May 14, 1992, and the classifications became effective in August 1992.
The Water Supply Watershed Protection Rules adopted in 1992 required that all local governments having land use jurisdiction within water supply watersheds adopt and implement water supply watershed protection ordinances, maps and management plans. The rules required all municipalities with a population greater than 5,000 to submit their adopted ordinances to the commission by July 1, 1993. Municipalities with populations less than 5,000 were to submit their ordinances by Oct. 1, 1993. All affected counties were scheduled to submit their ordinances by Jan. 1, 1994. To assist local governments, a model ordinance was approved by the commission on July 9, 1992. This document suggests appropriate language for adopting an ordinance under the general adoption powers. However, the language is also useful for local governments adopting their ordinances as zoning overlay districts and also for local governments implementing the rules by amending their subdivision regulations.
All local governments subject to the regulations have submitted ordinances in compliance with the statutory deadlines. The Division of Water Quality works closely with local governments to assist in the implementation of the required local programs. Division staff has met individually with local government officials and planners, and have conducted numerous public information sessions and workshops across the state. During this information exchange, many local governments expressed the need for more flexibility in the administration of the Water Supply Watershed Protection Program. The Division of Water Quality responded to these concerns by proposing amendments to the Water Supply Watershed Protection Rules to allow more flexibility in the local government watershed protection regulatory process. The amendments were approved by the Environmental Management Commission on June 8, 1995 and became effective on Aug. 1, 1995.
On Sept. 17, 1996, the Court of Appeals ruled in a 2-1 decision that the Water Supply Watershed Protection Act is an unconstitutional delegation of legislative power in violation of Article I, Section 6 and Article II, Section 1 of the North Carolina Constitution. In creating the program, which was ratified by the General Assembly in 1989, the legislature mandated that the Environmental Management Commission classify each surface water supply in the state and that the commission create minimum standards, which local governments were required to enforce using their police power, zoning authority, subdivision regulation authority or a combination of these. The court felt that when the General Assembly delegated the power of creating and enforcing the minimum standards to the commission, the General Assembly did not provide adequate guiding standards. In addition, the court found that the Water Supply Watershed Protection Act did not contain specific findings and goals and did not give specific guidance in the policy statement as to how it would be implemented.
Shortly thereafter, the Environmental Management Commission and the Department of Environment and Natural Resources appealed this decision to the state Supreme Court. In filing this appeal, the commission and the department requested and were granted a stay of the appellate court's decision. This meant that the effective date of the appellate court’s decision was delayed until the Supreme Court rendered its decision on the appeal. Therefore, all local programs and ordinances mandated by the Water Supply Watershed Protection Act are to remain in effect and are fully enforceable.
On July 24, 1997, the N.C. Supreme Court overturned the Appellate Court's decision ruling that the WSWP Program is unconstitutional. View a summary opinion or the full text of the N.C. Supreme Court decision.