(a) Purpose and intent. This section 36-81 is designed to maintain and protect the public health, safety and welfare by providing a process for reducing demand for potable water to protect the potable water resources of the town during actual or potential water shortages. This section identifies types of water shortages and authorizes the manager to issue a water shortage declaration and to execute the Town's Water Shortage Response Plan (WSRP). This section shall be liberally construed to implement such purpose and intent.
(b) Definitions. The following definitions apply, except where the context clearly indicates a different meaning:
(1) Customer means any person in whose name the town maintains an account for water use, or who is responsible for payment of water passing through a particular meter. All customers are responsible for any use of water that passes through the meter for which they have an account or are otherwise responsible and are deemed to be users hereunder.
(2) Manager means the Town Manager for the Town of Cary or designee, or, in the absence of the Town Manager, the Deputy Town Manager, the Assistant Town Manager or designee.
(3) Nonresidential user means any person who uses town potable water, other than a residential user; nonresidential user includes those who purchase town water in bulk.
(4) Person has the definition found in section 1-2 of this Code and includes all federal, state and local governmental entities.
(5) Potable water or treated water means any treated water introduced by the town into its potable water distribution system, including water purchased from other entities.
(6) Raw water means all water available to the town for treatment by virtue of the town's water rights or withdrawal permits.
(7) Residential user means any person who uses town water received through a meter serving a single unit, duplex, or multifamily dwelling unit, but not a meter serving educational or other institutions, hotels, motels, or similar commercial establishments (which are deemed to be 'nonresidential users').
(8) Trigger means conditions defined in the WSRP which will cause a water shortage to be declared or ended, or cause water shortage response stages to be increased or decreased in severity.
(9) User means any person using town potable water, and includes residential users and nonresidential users.
(10) Water shortage means a shortage of potable water in the town due to a raw water shortage, a water system shortage or any other water shortage.
"Raw water shortage" means a shortage of raw water available for the town to treat. Raw water shortages are most commonly caused by drought conditions, but may have other causes, including problems with the raw water intake or pipes.
"Water system shortage" means a shortage of potable water in the town due to problems with the town's water treatment or distribution system or affecting the town's ability to treat, transmit or store treated water.
"Other water shortage" means a shortage of potable water in the town due to causes other than raw water shortage or water system shortage, including any declaration of emergency or call for water use restrictions by state or federal agencies or any unforeseen circumstance such as contamination which may or does result in treated water supply not meeting normal water demand.
(11) Water Shortage Response Plan (WSRP) means a plan to respond to an actual or threatened water shortage, approved as required by N.C.G.S. Section 143-355.2.
(c) Water Shortage Response Plan. The town director of utilities ("director") is hereby authorized to prepare a Water Shortage Response Plan (WSRP) to be reviewed and approved in accordance with N.C.G.S. Section 143-355.2. The water conservation measures contained in the WSRP may be more stringent than the minimum water conservation measures required by N.C.G.S. Section 143-355.2. The WSRP, and any amendments to it, shall be adopted by the Town Council.
(d) Authorization. The manager is hereby authorized to implement the water shortage measures in the WSRP and to provide such other conditions and provisions as may be necessary to successfully carry out the goals of this section.
(e) Water shortage rates. Upon issuance of a water shortage declaration or at such other times as the council deems necessary, the council may, at any regular, special or emergency meeting, adopt water shortage rates designed to encourage water use reduction. Further, due to situations brought on by drought or other special infrastructure needs associated with a water emergency, the town council may adopt special rates that will reflect the additional costs associated with treatment and distribution of water. Any such rates may take effect as directed by council.
(f) Application, violation, enforcement, penalties. This section applies to all persons using town water, inside and outside the town limits, regardless of whether they have a contract for water service with the town, provided mandatory schedules or limits shall not apply to any public or volunteer fire department while fighting a fire. A customer of the town shall be responsible for all violations that occur in connection with water that passes through the meter for which the customer is billed by the town. Any person who uses water in violation of a restriction, schedule, or ban imposed on the use of water during a declared water shortage as defined in the Water Shortage Response Plan, or who otherwise violates the provisions of this section, or who impedes or interferes with any action undertaken or ordered pursuant to this section and policies adopted hereunder, shall be subject to the penalties listed below:
(1) Enforcement by police officers. Upon the declaration of a water shortage, the manager and every police officer of the town may enforce any restrictions or bans imposed on the use of water.
(2) Suspicion of violation. Whenever the town has reasonable cause to believe that a person is violating any of the provisions of this section or any policy or declaration adopted hereunder, the town shall immediately notify that person of the violation by affixing a written notice of the violation to the property where the violation occurred and/or personally delivering or mailing such notice to the customer of record and to any other person known to the town who is responsible for the violation or its correction. Such notice shall describe the violation, order that it be corrected, cured or abated immediately, and warn that more severe measures, such as civil penalties, criminal charges or termination of water service may be brought, assessed or imposed. If the order is not complied with immediately, the manager may undertake enforcement action as follows.
(3) Enforcement action. Any person who, after being given notice of violation, does not comply with this section or policy adopted hereunder immediately shall, at the option of the town, be subject to any of the following: Civil penalties, criminal penalties, termination of water service, injunctive relief, or any appropriate equitable remedy issuing from a court of competent jurisdiction.
a. Criminal penalties. Any person may be charged with violation of this section or policy adopted hereunder and prosecuted in district court. Any person so charged and found guilty of violating this section or policy shall be guilty of a misdemeanor. Each day's violation shall constitute a separate offense. The penalty for violation shall be a maximum fine of $50.00 per occurrence. The imposition of one or more penalties for any violation shall not excuse any violation or permit it to continue.
b. Civil penalties. In addition to or in lieu of criminal prosecution, violation of this section or any policy adopted hereunder may subject the violator or customer to a civil penalty as set forth in the town budget fee schedule per violation per day for so long as the violation exists. Each day on which a violation occurs or continues shall constitute a separate and distinct violation. The town shall serve a written citation on the violator, and the customer, if different, by personal delivery or by certified or registered mail, return receipt requested. The citation shall describe the violation and shall specify the amount of the civil penalty levied. The civil penalty for a first violation of this section shall be deferred and either (1) waived if there has been no subsequent violation of this section during the declared water shortage; or (2) will become due immediately if a subsequent violation of this section occurs during the declared water shortage, in which case it will be assessed in addition to the civil penalty imposed for any subsequent violations. The civil penalty is collectible in a civil action in the nature of debt. The imposition of one or more penalties for a violation shall not excuse any violation or permit it to continue.
c. Termination of service. A third violation of this section shall result in termination of service. The standard reconnection charge shall be paid for the reconnection of any water service terminated pursuant to the current town ordinances and procedures.
(4) Appeal. Any person against whom enforcement action has been taken, hereafter referred to as "aggrieved party," may seek judicial review of the action by filing a written petition within 30 days of the date of the notice of violation, but not thereafter.
(5) Variance. Any person may submit an application to the utilities director for a variance from specific requirements of the WSRP, using the process defined in the WSRP.
(Code 1982, § 19-45; Ord. No. 95-020, 6-8-1995; Ord. No. 96-006, § 1, 7-11-1996; Ord. No. 2007-05, § 2, 5-10-2007; Ord. No. 2008-Code-01, 6-12-2008; Ord. No. 2009-Code-08, 6-10-2009; Ord. No. 2019-Code-04, 10-10-2019; Ord. No. 2022-Code-01, 4-28-2022)