Legal Tides

by Joseph J. Kalo, Co-Director of the North Carolina Coastal Resources Law, Planning and Policy Center and Graham Kenan Professor of Law, University of North Carolina School of Law

During the last few months, two coastal cases of significance to North Carolina waterfront property owners were decided by the courts and, as of October 19, 2010, a decision is still pending in a third. One case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection¹, was decided by the Supreme Court of the United States on June 17, 2010. The other decided case, Fish House, Inc. v. Clarke², was decided by the North Carolina Court of Appeals on May 10, 2010. The third case, Newcomb v. County of Carteret³, was argued before the North Carolina Court of Appeals on February 2, 2010, and a decision is pending.

Stop the Beach Renourishment and Implications for North Carolina

Renourished beaches, like this one above, are raising complex legal issues in North Carolina and beyond. Photo: North Carolina Sea Grant/Spencer Rogers.

Closely watched by oceanfront property owners and coastal communities across the country, the Stop the Beach Renourishment case presented the Supreme Court of the United States with the question of whether the State of Florida violated the Fifth Amendment to the U.S. Constitution and committed a taking of private property of oceanfront property owners when it authorized a beach nourishment project on the northwest coast of Florida.

Under Florida law, as is the case also in North Carolina, along the natural shoreline, the title of oceanfront property owners extends to the mean high water mark. Prior to the initiation of the Florida beach nourishment project, the location of the existing mean high water line was determined. After the completion of the project, that pre-project mean high water line would then be the waterward boundary of oceanfront property owners. Title to all dry sand beach created beyond that line would be to the State of Florida and be open to public use.

The same holds true under North Carolina law. Before a beach nourishment project gets underway, the existing mean high water line is determined by the State, and that line becomes the fixed boundary of the oceanfront property within the project area. Once the project is completed, all the newly created beach seaward of that line is owned by the State and is open to public use.

Although this project was designed to restore over six miles of North Florida beaches that became eroded as part of hurricane damage, a number of oceanfront property owners objected.⁴ The basis of their objection was that prior to the initiation of the project their common law property rights included: (1) the right to remain in direct contact with the water; and (2) the right to all future accretions to the shoreline directly in front of their property. However, if the pre-project mean high water line became the waterward boundary of their property, they would no longer be in direct contact with the water and would no longer be entitled to any future accretions to the shoreline in front of their property. This, they asserted, constituted a taking of two of their important common law property rights for which they were entitled to be compensated by the State. In the absence of such compensation, they argued, the Fifth Amendment to the United States Constitution barred the State of Florida from undertaking the project.⁵ The key to the U.S. Supreme Court’s rejection of the property owners’ claim is a basic principle of federalism: property rights are determined by state law, not federal law. Therefore, the nature and extent of private property rights are creatures of the law of each individual state. Furthermore, the law of the various coastal states may differ in significant ways.

In the Stop the Beach Renourishment case, the Florida Supreme Court read existing Florida common law as establishing two propositions. First, the “State as owner of submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners.”⁶ Second, Florida law treats the filling of state-owned submerged lands the same as state common law treats avulsive changes in the shoreline. Under the common law, an avulsive change is a sudden rapid change of the shoreline. So, if a hurricane increases the width of a beach by fifty feet, then that would be an avulsive change. Under such a circumstance, the added fifty feet of width would not be owned by the adjacent shoreline owner. Instead, it would be state owned. In addition, if that fifty feet cut off a shoreline owner’s access to the water, that owner would no longer possess any common law right to direct access to the water or any right to future accretions to the shore. The waterward boundary of the owner of such land would be where the mean high water line stood prior to the avulsive event.

Although one may quarrel with Florida characterizing a beach nourishment project (a manmade, not a natural, event) as an avulsive event, that is a characterization that the Florida Supreme Court was free to make because it was not inconsistent with earlier state Supreme Court decisions. Consequently, the U.S. Supreme Court agreed with the Florida Supreme Court that there was no taking of any private property rights because the claimed rights did not exist.

What are the implications of this case for beach nourishment projects in North Carolina? In some situations, oceanfront property owners objecting to a proposed beach nourishment project have argued that they are entitled to be compensated for any loss of direct contact to the ocean, loss of direct access to the ocean and loss of their right to future accretions.⁷ The decision in Stop the Beach Renourishment deflates those claims.

Although no North Carolina case equates a beach nourishment project with a natural avulsive event, submerged lands seaward of the mean high water line are state-owned public trust lands, and the State of North Carolina has the right to authorize filling of those lands so long as it does not interfere with the rights of oceanfront property owners. Furthermore, existing North Carolina case law strongly suggests that a beach nourishment project may not only result in the termination of an oceanfront property owner’s direct contact with the water and loss of any right to future accretions, but under some circumstances could result in the loss of any right of direct access to the ocean.

Slavin v. Town of Oak Island⁸ concerned a beach nourishment project that was undertaken to create sea turtle habitat and to restore a seriously eroded beach. After the completion of the project, some oceanfront property owners objected to the fact that they were prohibited from going directly from their oceanfront homes, across the newly created dunes, to reach the beach and water. Instead, they had to walk to the nearest public access point to get to the beach and water. This restriction was imposed to protect the newly created sand dunes and sea turtle habitat. The oceanfront property owners asserted that this was an uncompensated and, therefore, unconstitutional taking of their right to direct access to the ocean. The North Carolina Court of Appeals disagreed. According to the court, “the right of direct access is a qualified one… and subject to reasonable regulation,” and no one contended that the particular regulation was in fact unreasonable.

The Oak Island project was an unusual one. Oceanfront property owners normally should not fear a loss of their right to direct access to the ocean as a result of a more typical beach nourishment project. In the typical project, the design calls for placement of some sand landward of the pre-project mean high water mark. Consequently, the project sponsor (e.g., a local government) will need an easement from each oceanfront property owner in order to do that. As part of the easement agreement between the oceanfront property owner and the project sponsor, there will be a provision recognizing the right of the oceanfront property owner to continue to have full access across the full frontage of their property to the water’s edge after the completion of the project. In the Slavin case, the project sponsor did not get easements because it did not need them. It did not need them because all the sand was placed seaward of the pre-project mean high water line. No sand was placed landward of that line. As a result, (1) the oceanfront property owners were no longer in direct contact with the ocean; (2) the newly created beach was state-owned land open to the public; (3) any future accretions belonged to the State and not to the oceanfront property owners; and (4) any right to direct access to the ocean was gone. Slavin’s importance is that it illustrates that under North Carolina common law an oceanfront property owner’s common law rights of access are not absolute.

After the decision in Stop the Beach Renourishment, beach nourishment project sponsors should not be intimidated by the potential of objecting oceanfront owners claiming an unconstitutional taking or a fear that funds must be found to compensate the objecting owners. Neither the Stop the Beach Renourishment decision nor existing North Carolina law provide support for such claims. On the other hand, oceanfront property owners should examine carefully any proposed beach nourishment easement agreement to make sure there are no unreasonable limitations on their right of direct access.

The Fish House Case: What Waters are Public Waters?

The central issue in the Fish House case was whether a manmade canal is a navigable waterway open to public use. The dispute involved the owners of two fish houses, both of which were located along a dead-end manmade canal running along the borders of the two properties, but lying entirely within the boundaries of plaintiff’s property. The plaintiff instituted a trespass action seeking to enjoin the use and partial blockage of the canal by defendant and vessels using defendant’s fish house. The trial court concluded that the canal waters were public and dismissed plaintiff’s action. The plaintiff then appealed.

The canal was clearly navigable. In North Carolina, the general rule is that waters that are navigable-in-fact in their natural condition are open to public use. Thus, the question was whether this rule also applied to waterways that are navigable-in-fact, but were artificially created by digging or dredging out privately owned uplands and connected to natural, navigable-in-fact water bodies.

In the Fish House case, the Court of Appeals concluded that “any waterway, whether manmade or artificial, which is capable of navigation by watercraft constitutes ‘navigable water’” and is open to public use.⁹ This conclusion is sound. By creating and connecting a manmade canal or marina or boat basin by dredging out uplands to a natural navigable body of water, such as the Pamlico Sound or Neuse River, public waters flow into, and make feasible the use of, the canal, marina or boat basin. The presence of those public waters and public natural resources associated with those waters carries with them the right of the public to make public trust uses of those very same waters.

The North Carolina Division of Coastal Management Handbook for Development in Coastal North Carolina puts developers of artificial waterways, marinas and similar facilities on notice of this. Section 2(A)(1) of the handbook states that public trust areas include: (1) “all navigable natural water bodies”; (2) “all water in artificially created water bodies that have significant public fishing resources and are accessible to the public from other waters”; and (3) “all waters in artificially created water bodies where the public has acquired rights by prescription, custom, usage, dedication or other means.”¹⁰

The Fish House decision provides an answer to the often-asked question of whether fishermen may enter the waters of a private marina to fish, when the marina was created by dredging out uplands and connecting it to navigable-in-fact public waters. Although only the public right of navigation was directly implicated in the Fish House case, public use of artificially created navigable-in-fact waters should include all other appropriate public trust uses, such as fishing and other appropriate water-related activities. So, if the marina waters are navigable-in-fact and contain sports fish, a significant public trust resource, then fishermen should be able to enter the area in pursuit of those fish.

Marshallberg Harbor Case (Newcomb v. County of Carteret)

The Fish House case did not involve an issue as to whether owners of land adjacent to an artificially created, navigable-in-fact waterbody possessed any traditional riparian rights. That question, however, is present in the Marshallberg Harbor litigation. In the Marshallberg Harbor situation, the issue is whether the owners of such land have the same riparian right to wharf out as owners of land adjacent to natural navigable-in-fact waters.

Marshallberg Harbor was created as a small boat harbor in 1956–57, as the result of federal legislation.¹¹ The U.S. Army Corps of Engineers created the harbor by dredging out an upland area. Before the Corps began the project, the various owners of the affected uplands signed easement agreements with the county, and the county, in turn, signed easement agreements with the federal government.

The purpose of the project was to create a small boat harbor for use by the people of Marshallberg, surrounding communities, transient boaters and the general public. According to the testimony at the trial level, no natural creek or other body of water existed in the upland area in which the small boat harbor was created.

The new harbor is small, approximately 1,000 feet in length, less than 150 feet wide at its widest point and averages 6 feet in depth. It is bordered by private lands on both sides and by a public landing area at the head of the harbor, with bulkheads and various docks having been constructed along both sides and at the head of the harbor for use by the citizens of Marshallberg and the public. Now, more than fifty years later, the present owners of the adjacent private lands are asserting that they possess common law riparian rights, including the right to wharf out into the CAMA-defined areas of access in front of their lands. If the court agrees with the landowners, most of the existing docks and boat slips constructed by the citizens of Marshallberg would have to be removed. In addition, if docks and boat slips are placed in these claimed areas of access, then the publicly available navigable open water would be reduced to a narrow channel of less than fifty feet at the widest point in the harbor.

Although the general rule in most states is that only landowners adjacent to natural navigable-in-fact waterbodies possess common law riparian rights, both the Fish House case (which was decided after the Marshallberg Harbor case was argued) and a 1997 North Carolina Court of Appeals decision, Pine Knoll Association v. Cardon¹², may lend some support to the position of the landowners. The Fish House case treats both natural and artificially created navigable-in-fact waters the same insofar as the public’s right to use the waters. In the Cardon case, the court assumed, without deciding, that the landowners adjacent to a privately created artificial canal possessed common law riparian rights.¹³ So, the panel of the Court of Appeals that heard the arguments in the Marshallberg Harbor case may be trying to determine the applicability of Fish House and Cardon, and whether these cases compel a finding that the adjacent landowners in the Marshallberg Harbor case have a common law right to wharf out.

On the other hand, when manmade waterbodies are created, the various agreements necessary to acquire the rights to dredge and flood an area and other relevant legal documents (such as the federal legislation creating the Marshallberg Harbor project) may show that there was no intent to grant adjacent landowners any riparian rights. In such situations, the documents and other legal instruments would be controlling.

So, the panel before which the Marshallberg Harbor case was argued may be examining closely the documents authorizing the original project and those creating the easements that were necessary to the original project to determine whether the language of these documents negates the existence of any common law riparian rights.

If the court concludes that the adjacent landowners have, or do not have, a common law right to wharf out into manmade navigable waters, the Marshallberg Harbor case would settle an important coastal question. However, if the court rests its decision on the documents authorizing the harbor project and conveying the necessary easements, then the case would be of minor importance in the development of North Carolina coastal law.

Conclusion

As the contours of our shorelines and natural waterways are altered, the effect of these manmade activities on the rights of the public and adjacent private landowners looms large. The Stop the Beach Renourishment and Fish House cases provide us with some answers. The Marshallberg Harbor case may end up shedding even more light on this question.

Footnotes

1. Stop the Beach Renourishment, Inc. v. Florida Dept. of Envtl. Prot., 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010).

2. Fish House, Inc. v. Clarke, 693 S.E.2d 208 (N.C. Ct. App. 2010) review denied, 263P10, 2010 WL 3501636 (N.C. Aug. 26, 2010).

3. Newcomb v. County of Carteret, No. COA 09-1254, (N.C. App., argued Feb. 23, 2010).

4. Stop the Beach Renourishment, 130 S. Ct. at 2594-2595. Although the nourished beach would provide significant storm protection to oceanfront owners on these seriously eroding beaches, the objecting owners’ principal reason for opposing the project and claiming a right to compensation was that the nourished beach would be an area open to public use. Unlike North Carolina, in which the public has the right to use all dry sand public beaches, public rights in Florida do not include the right to use natural dry sand beaches. In Florida, the oceanfront property owner’s title, and right to exclude the public, extends to the mean high water line in areas where the beach is a natural (unnourished) beach. In North Carolina, although the oceanfront property owner’s title extends to the mean high water line, the public has a customary right to use the dry sand beach and may not be excluded by the oceanfront property owner.

5. Stop the Beach Renourishment at 2596. For a more detailed discussion of this case and the arguments made, see Do Publicly Funded Beach Nourishment Projects Deprive Oceanfront Property Owners of Private Property Rights Without Just Compensation?, LEGAL TIDES, North Carolina Coastal Resources Law, Planning and Policy Center, Oct. 19, 2009, http://blogs.ncseagrant.org/legaltides/2009/10/19/do-publicly-funded-beach-nourishment-projects-deprive-oceanfront-property-owners-of-private-property-rights-without-just-compensation/.

6. Stop the Beach Renourishment, 130 S.Ct. at 2595.

7. Id. See, e.g., Hucheson, Amanda, New Topsail commissioners to re-examine beach nourishment project, STARNEWS ONLINE, Nov. 27, 2009, http://www.starnewsonline.com/article/20091127/ARTICLES/911274002.

8. Slavin v. Town of Oak Island, 160 N.C. App. 57, 584 S.E.2d 100 (N.C. Ct. App. 2003).

9. Although the reasoning of the court is subject to serious criticism, the result is correct. See, e.g., Burti, Chris, Manmade Canal Held to be Public Trust Lands by COA, Newsletter and Legal Memorandum, STATEWIDE TITLE, June 1, 2010, http://statenet.net/newsletterarticle.asp?Article=311.

Although Mr. Burti’s criticism of the court’s use of the public trust doctrine is well taken, his analogy to connecting a driveway to a state highway is not. In the driveway analogy the owner supplies and owns the concrete creating the driveway; however, the creator of an artificial body of water connected to public navigable-in-fact waters does neither and has no legal title to the water. However, the Court of Appeals’ discussion of the public trust doctrine suggesting that the submerged lands under a navigable-in-fact manmade body of water are state-owned public trust submerged lands, I think, is just plain wrong and shows both a misunderstanding of state public trust law and a failure to distinguish between what waters are available for public use and what submerged lands under navigable waters are state owned.

10. CAMA Handbook for Development in Coastal North Carolina: Section 2(A)(1), N.C. DIVISION OF COASTAL MANAGEMENT, http://dcm2.enr.state.nc.us/handbook/section2.htm (last modified Oct. 24, 2007).

11. The Rivers and Harbors Act of 1950 (“Waterway From Pamlico Sound to Beaufort Harbor, N.C. – Harbor Improvement at Marshallberg”), House Document No. 68, 81st Congress, 1st Session; as depicted on “Corps of Engineer Map Entitled Right-of-Way Required for Channel and Basin at Marshallberg, File No. PSB 90 dated 18 October 1956.”

12. Pine Knoll Ass’n, Inc. v. Cardon, 126 N.C. App. 155, 484 S.E.2d 446, rev. denied, 347 N.C. 138, 492 S.E.2d 26 (1997).

13. Because, in Cardon, it was in neither party’s interest to raise the issue of whether common law riparian rights exist on an artificially created water body, the Court of Appeals did not directly address or decide this issue.

In 2009, the Supreme Court of the United States granted certiorari to review(1) Walton County v. Stop The Beach Nourishment, Inc. (2),  a Florida beach nourishment case in which the plaintiffs claim that their private property rights are being taken without just compensation in violation of the Fifth Amendment to the United States Constitution.  The outcome of this case could have important financial implications for beach nourishment projects around the country, including those in North Carolina.

Facts of the Florida Case

The essential facts of the case are these: A series of hurricanes — Opal (1995), Georges (1998), Isadora (2002) and Ivan (2004) — severely eroded beaches in the Florida Panhandle region.  As a remedy, a beach nourishment project was initiated by Walton County and the City of Destin.  As is typical in such projects, sand from offshore sources would be used to fill state-owned public trust submerged lands adjacent to the existing dry sand beach.  Upon completion of the project, title to that part of the beach created by filling those submerged lands would be vested to the State of Florida, and those newly created beach lands would be open to public use.  The dividing line between privately owned oceanfront property and this newly created beach would be the mean high water line (sometimes referred to as the mean high tide line), as it existed before the project began.  To determine the location of that line, at the beginning of the project the existing mean high water line is identified and delineated by a survey.  In Florida, this line is referred to as the erosion control line, or ECL. (3)

In the Florida case, the plaintiffs argue that the legal impact of the beach nourishment project upon the oceanfront property owners is that they are no longer common law littoral owners and no longer possess common law littoral rights.  They further contend that the statutory rights provided are an inadequate substitute for their common law rights.  More specifically, the plaintiffs claim that their common law littoral rights of direct contact to the water and to accretions have been taken without payment of just compensation, as required by the Fifth Amendment to the U.S. Constitution.  What they are not claiming, however, is that their right of access to the water is being taken because the applicable Florida statutes expressly preserve that right of access.  In light of this case, the question is: what are the legal consequences of a beach nourishment project establishing a fixed land property line for adjacent private oceanfront lands?

Traditional Common Law

Understanding both the plaintiffs’ claims and their flaws requires an appreciation of applicable traditional common law principles.  Under these principles, normally littoral rights attach only to land that directly abuts the water. In the case of oceanfront property it means that one of the seaward property lines must be the existing mean high water line.  However, after a publicly funded beach nourishment project, privately owned oceanfront property no longer abuts the ocean.  It abuts the new beach created by the nourishment project, and the seaward line of the oceanfront property is no longer the existing mean high water line.  Instead, it will be a fixed line landward of the existing mean high water line — a fixed line determined by where the mean high water line was before the project was undertaken.  Therefore, one might reasonably conclude that the establishment of the fixed line and the separation of the privately owned oceanfront land from the water eliminate both the land’s status as littoral property and associated common law littoral rights.  However, there is some case law that would suggest otherwise.

Direct Contact With Water Is Not Always Essential To The Right of Direct Access

Perhaps one of the most instructive is Tiffany v. Town of Oyster Bay, (4) uses the term “riparian rights”; however, there is no substantive difference between riparian rights and littoral rights.  Frequently, the generic term “riparian” is used for both.

In Tiffany, a waterfront property owner mistakenly believed he owned the adjacent submerged lands and filled them.  Unfortunately for him, the court ruled that the town held title to the submerged lands both before and after that land was raised.  Having title to the raised land, the town decided to make full use of the filled land and built 33 public bath houses on it.  The waterfront property owner sued to enjoin the town’s plan on the ground that it would interfere with his right of access.  Although the town was not precluded from using the filled land as a public beach, it was prohibited from erecting structures which would interfere with the waterfront owner’s direct access to the water “along the whole frontage” of his property.  The court also stated that the waterfront owner’s “rights as a riparian owner continue[d].”  The conclusion to be drawn is that, if the filling of submerged lands through a mistake of fact by the adjacent waterfront owner or by a third person physically separates the property from the water, the property owner still retains her or his common law right of direct access to the water across the full frontage of his land. Although the property owner may no longer abut the water and be in direct contact and no longer have ownership of any future accretions to the filled lands, the right of direct access to the water continues to exist. (5)

When beach nourishment projects result in a similar separation of privately owned oceanfront property from the water, this general principle is acknowledged by statute, the project agreement or general understanding.

In the Florida case, the state’s Beach and Shore Preservation Act incorporates this principle.  By the terms of that Act, the oceanfront property owners’ littoral access rights are expressly preserved.  However, the Act does state that the oceanfront property owners have no right to any future accretions to the newly created beach lying seaward of the fixed line established by the project.  This means that they would no longer have direct contact with the water.  There is nothing novel about this provision in the Act.  In fact, when the first beach nourishment project took place in North Carolina at Wrightsville Beach in 1933, the North Carolina General Assembly passed a similar statute expressly preserving the right of access of oceanfront property owners being cut off from direct contact with the ocean.  In essence, what such statutes do is to substitute statutory littoral rights for the common law ones.

The Common Law Right Is Direct Access, Not Necessarily Direct contact Or A Right To Accretions

Under some circumstances, the elimination of direct contact with the water and any claim to accretions is consistent with the common law of littoral rights.  Under common law principles, the relevant common law right is the right of access to the waterbody.  According to a 19th century authority,(6) the components of that right were:

(a) The right to maintain contact with the  body of water

(b) The right to accretions

(c) The first right to purchase adjacent submerged lands if it is sold by the state

(d) If filling of submerged land is permitted by the state, the preferential right to fill adjacent submerged lands.

However, to focus upon these individual components is to lose sight of the forest for the trees.  The justification for the components is to assure that the waterfront property owner does not lose the most valuable feature of her or his property — the right of direct access to the waterbody.  Just as the cutting down of one or two trees does not eliminate the forest, in the context of a beach nourishment project the absence of a right to accretions or direct contact with the water does not eliminate the littoral right of continued direct access to the water.  At the conclusion of the beach nourishment project, the oceanfront property owners continue to have direct access both legally and practically to the water.  Legally, a private, constitutionally protected right to cross the nourished beach to reach the water exists as a matter of common law and is recognized by the Florida Act.  As a practical matter, no physical barriers or hindrances prevent the oceanfront property owners from walking out the door, crossing the nourished beach and reaching the water’s edge.

It is also important to note that littoral rights are not absolute and may be lost through natural events, such as hurricanes.  Another common law principle is that, if there is a sudden addition to the shoreline as the result of an event such as a hurricane, a so-called change by avulsion, the physical location of the legal line dividing privately owned oceanfront property from state-owned public trust lands does not move as it would with gradual accretions to the shoreline.  Instead, a quirk in the common law is that the pre-storm mean high water line would remain as the physical location of the seaward limit of privately owned oceanfront property.  For example, if a storm left an addition of 50 feet of sand to the beach, those 50 feet would be state-owned public trust lands.  This means that privately owned oceanfront lands would no longer abut the water, and the oceanfront property owner would no longer have any common law littoral right of access or any of the component littoral rights.  If the state decided to put up fences or other barriers seaward of the pre-storm mean high water line, the oceanfront property owner would have no claim that the fences or barriers infringed her or his rights as a littoral owner.  Therefore, the Florida Act actually provides the oceanfront property owner with a higher level of access than the common law would.  Under the Act, if additions to the shoreline take place, the property owner retains access to the water regardless of whether additions are the result of accretions, avulsion or artificially created.

The permanent loss of all littoral rights, and to all legal title to any oceanfront lands, also may take place if erosion is so severe that the entire area comprising a particular oceanfront parcel becomes submerged land.  In that situation, once the mean high water line moves across all the boundary lines of an oceanfront tract, private title to that area is gone, lost forever.  Under the common law rule of promotion, the property behind the original oceanfront tract would be promoted to littoral status, its seaward boundary would become the ambulatory mean high water line, and all traditional common law littoral rights would attach to that tract of land.  Any later resurrection of the submerged area would not revive the title of the original oceanfront property owner.  Of course, a beach nourishment project protects oceanfront property owners from just such a loss of title to valuable oceanfront property.

Assuming Loss Of The Right to Direct Contact And Accretions: So What?

If the plaintiffs lose ancillary rights to direct water contact and to accretions, then such a loss may be only temporary.  The Florida Act itself provides that, if the restored beach is not maintained, then the ECL is cancelled and common law littoral owners are re-established.  Even in the absence of the statute, if the restored beach was not maintained and the shoreline eroded past the pre-project mean high water line, then under the common law the littoral rights of the oceanfront property owners would be resurrected.  Once the shoreline crossed the pre-project mean high water line, under the common law the oceanfront property owners would once again become littoral property owners, the fixed boundary line would be eliminated, and the mean high water line would once again become the seaward boundary of the privately owned oceanfront property.  Therefore, there is no assurance that the oceanfront property owners’ loss of direct contact or to accretions is a permanent loss of those ancillary rights.  The duration of the loss depends upon public funding and maintenance of the restored beach.

Secondly, current predictions about the impact of climate change strongly suggest that erosion, and not accretion, is the more likely future of ocean beaches.  Absent beach nourishment projects, the combination of predicted sea level rise and increased storm events are likely to eat away at ocean beaches.  The reality is that any loss associated with the claim to accretions is more theoretical than real.  Under the common law, the impact of the erosion rule is the flipside of the coin.  If erosion gradually eats away at the shoreline and the mean high water line moves landward, the oceanfront property owner will lose title to any lands seaward of that moving mean high water line.  Therefore, as a practical matter, the protection against loss of shoreline through erosion afforded by a beach nourishment project probably more than offsets any “loss” of the right to accretions.

In addition, if the rights to direct contact and to accretions are being “taken,” what exactly is the value of those rights?  These rights are just two related sticks in a traditional bundle of littoral rights.  As such, the value of the rights should be determined by the value of the property with the rights versus the value after the rights can no longer be exercised.  In the setting of a beach nourishment project, the shoreline being nourished is already seriously eroding, perhaps with ocean waters even lapping at or near the foundations of oceanfront houses.  If one takes the value of those houses prior to the project and the value after the project, the likelihood of any adverse financial impact is probably non-existent or minimal.  More likely, the oceanfront property is worth more with a nourished beach lying in front of it — a beach that likely will continue to be nourished in the future — compared to a seriously eroded beach that may disappear all together and destroy the oceanfront property.

by Jackson Mabry, Research Law Fellow, NC Coastal Resources Law, Planning and Policy Center

Naturally migrating shorelines, hurricanes, and beach erosion threaten hundreds of houses on beachfront property each year in North Carolina. State law does not allow beachfront property owners to construct a hardened structure to protect the houses from an eroding shoreline, but does permit temporary placement of sandbags. A protective wall of “temporary” sandbags has sheltered many beachfront houses for decades despite the fact that, under Coastal Area Management Act (CAMA) rules, these sandbags should have been removed years ago. Recently, the North Carolina Coastal Resources Commission (CRC) decided that old sandbags must go and is taking steps to remove them. This issue of Legal Tides examines the rules governing the placement of sandbags and the difficult task the CRC faces in enforcing its “temporary” sandbag rules.

According to North Carolina Law, sandbags are supposed to be a temporary fix for beachfront structures threatened by erosion.

Past Legislation Against Hardened Structures

North Carolina law prohibits the use of seawalls or other “hardened structures” along the coastline. (1) A seawall controls shoreline erosion directly to the landward side, but in many cases it hastens the erosion of other areas along the same beach that are unprotected by the seawall. Many coastal geologists and other beachfront experts criticize the use of seawalls as the least effective and most harmful means of controlling beachfront erosion. (2) Although a seawall may protect the shoreline behind it, critics argue that the beach as a whole suffers accelerated and more deleterious effects with a seawall than without it. Noting these problems, the CRC enacted a rule in 1979 that prohibited all permanent, hardened structures as means of erosion control. As a result, only three percent of North Carolina’s coastline is “hardened,” and permanent erosion control structures do not interfere with the natural movement of tides, currents, and sand along its coastline.

The rule, located at 15A N.C.A.C. 7H.0308, originally applied only to structures built after 1979. However, the CRC amended the rule in 1989 by adding subsection (a)(1)(C) that states the rule against permanent structures applies to all such structures, regardless of their location or date of construction. The rule contains narrow exceptions that allowed construction of seawalls at Fort Fisher and at the Cape Hatteras lighthouse, which was eventually moved away from its ineffective groins. Subsequently, in 2003, the North Carolina General Assembly codified the ban on permanent, hardened structures and the exceptions in N.C. General Statutes Section 113A-115.1.

Although the CAMA rule prohibits permanent structures, it specifically allows for beachfront erosion control through the use of temporary sandbags under limited circumstances. The rule allows sandbag placement only around structures that are “imminently threatened.” A structure is “imminently threatened” if it meets either of two criteria: (1) the structure sits 20 feet or less away from the erosion scarp; or (2) where an erosion scarp is not obvious, yet site conditions increase the risk of imminent danger to the structure. (3) In order to place sandbags around an imminently threatened structure, a permit from the CRC is required.

CAMA rules define a “sandbag” and the shape and design of the protective structure. Permissible sandbags must be “tan in color, three to five-feet wide and seven- to 15-feet long when measured flat.”(4) The sandbag wall cannot run beyond 20 feet in length from the end of the building, cannot be greater than six feet in height, and cannot have a base of more than 20 feet in width. The sandbag walls also must run parallel to the shoreline.

Sandbags are supposed to be temporary erosion control measures and are normally expected to be removed from the beach within two to five years unless: (1) the community is actively pursuing a beach nourishment project; (2) the sandbags have become permanently covered in dunes and vegetation; or (3) the permittee has received an extension for the sandbags by requesting a variance. (5, 6) Absent such circumstances, sandbags protecting a structure greater than 5,000 square feet in area must be removed in five years, and those protecting a structure 5,000 square feet or less in area must be removed after two years. In addition, the permittee must remove the sandbags if the structure is no longer imminently threatened.

The underlying intent of these rules is preservation of the natural beach — one free of sandbags, seawalls, and other human-made obstructions. When that is not feasible, the State prefers the use of techniques that maintain a “natural-looking” beach, e.g., a beach nourished with beach-quality sand or one on which the sandbags appear to be part of a natural dune structure. Any deviation from this standard should be temporary.

Though these rules impose severe limitations on sandbags, the CRC has not consistently enforced them. Currently, 369 temporary sandbag structures occupy North Carolina’s coastline. While most lie there lawfully, approximately 123 do not. The CRC noted that the problem had grown to such proportions that it required action by the commission. In April 2008, the CRC sent letters to the owners of the 23 sandbags structures in grossest violation of CAMA rules. (7)

The Riggings Case

A condominium development in Kure Beach called The Riggings demonstrates the choice that some beachfront property owners must confront as a result of the CRC’s decision to enforce the CAMA sandbag rules. They can (1) remove the temporary sandbags and watch the beach continue to erode; or (2) they can use the legal process and fight to retain their sandbags.

Due to the somewhat unique natural features and human actions, the shoreline in front of The Riggings has been eroding since 1926. As a result, The Riggings has needed temporary sandbag protection since it was built in 1985. The major causes of the erosion along this particular stretch of beach consist of the natural topography of the area and human-made changes to it. Bracketing the shoreline in front of The Riggings are two large outcroppings of coquina rock jutting into the ocean: one lies immediately to the north and the other immediately to the south. The northern outcropping acts as a natural groin. It traps sand moving from north to south, depriving the shoreline in front of The Riggings of sand and thus accelerating erosion. The southern outcropping also should act as a natural groin, trapping sand and providing some protection for the shoreline immediately to the north. Unfortunately, approximately 6,000 cubic yards of this southern outcropping were removed in 1926 as part of the construction of U.S. Highway 421 (prior to 1926, this outcropping extended 100 feet farther out into the ocean than it presently does). As a result, the shoreline to the north lost much of the benefit of this natural groin. Therefore, when The Riggings was built between these two features in 1985, its shoreline was already in trouble.

Actions by the State to protect nearby Fort Fisher further exacerbated the erosion problem. In 1996, the State constructed a seawall to protect Fort Fisher. The fort was built during the Civil War and since has been designated a State historic site. Since its abandonment in 1865, the shoreline in front of the fort has eroded severely. In fact, between 1926 and 1931, the shoreline in front of the fort lost 280 feet. To preserve the fort, the State built a seawall around it. However, the seawall had an unintended effect — it increased the erosion in front of The Riggings. Although the rate of erosion subsided after a few years, The Riggings’ shoreline continues to erode more quickly than it did prior to the seawall’s construction.

To combat this erosion and protect its condominium buildings, The Riggings has used sandbags since 1985. At that time, CAMA rules — which the CRC has since revised — authorized The Riggings’ sandbags to remain in place until 1995, at which point they would require an extension to remain. The Riggings sought an extension in 1995, and the CRC extended their permit another five years.

Between 1996 and 1999, five hurricanes struck in the vicinity of The Riggings, and by 2000 the beach had not recovered to its pre-hurricane condition. Furthermore, a 2001 Kure Beach nourishment project did not include The Riggings. With the 1995 extension about to expire, The Riggings homeowners decided they needed more time to continue to explore other options, including relocation of the buildings across U.S. Highway 421 to other land owned by the development. The homeowners association then filed a request to the CRC for an additional three-year extension. However, The CRC only granted an additional one-year extension, giving The Riggings homeowners more time to seek a long-term solution to its erosion problem.

In 2002, the CRC granted The Riggings another one-year extension, as it sought to resolve issues surrounding a plan to relocate its buildings. In 2003, The Riggings applied for another extension, which the CRC granted this time for two years to allow The Riggings homeowners to finalize a relocation plan. In 2004, $2.7 million in financial assistance for relocation was made available to The Riggings through a conditional Federal Emergency Management Agency (FEMA) grant. In 2005, The Riggings applied for another extension, as it was still finalizing plans for relocation. The CRC, noting that The Riggings had hired contractors and had developed extensive plans for relocation, granted the extension only for the duration of the FEMA grant, which would expire in 2007 or upon rejection by the intended grantee.

The FEMA grant stipulated that The Riggings homeowners would pay the additional cost of relocating the buildings that exceeded $2.7 million. The by-laws of The Riggings Homeowners Association, as well as the conditions of the FEMA grant, required unanimous approval for the move. In 2006, however, 24 homeowners voted against the proposal to accept the FEMA money and move the condominiums. Reasons given included that not every homeowner could afford to pay his or her share of the moving costs, and some homeowners claimed they would lose their mortgages if the condominiums were relocated. As a result, the FEMA grant expired, and the CRC extension expired as a consequence. The Riggings then applied for another extension on August 22, 2006. The CRC denied this request in January 2008.

CRC’S Denial and Action in the Superior Court

Under current North Carolina law, in order to receive an extension of time for temporary sandbags, a variance (8) must be obtained from the CRC. To obtain a variance, the petitioner must demonstrate four criteria: (1) that strict application of the CAMA rules will cause the petitioner unnecessary hardship; (2) that hardship results from conditions particular to the petitioner’s property (e.g., location, size, and topography); (3) that hardship does not result from actions taken by the petitioner; and (4) that the variance will be consistent with the spirit, purpose, and intent of the rules sought to be excepted. (9) In denying The Riggings’ 2006 request for an extension, the CRC decided that: (1) strict application of the rule will not cause unreasonable hardship; (2) any hardships that may exist are not the result of geographic peculiarities, but instead are the result of the owners of The Riggings’ inability to move forward as a Homeowners Association to relocate the buildings; (3) any hardships result from failure to take concrete actions to move forward with a relocation project; and (4) the variance would not be consistent with the spirit of the law. According to the CRC:

While Petitioner argues that allowing the sandbag structure to remain is the best way to achieve this goal, Staff and the Commission disagree. While the sandbags were meant to be a temporary help, the Petitioner’s membership continues to rely on sandbags to protect them from, or reduce damaging storms, instead of making real progress toward a lasting solution. The Petitioner’s membership has done so for 23 years. Removal of sandbags may provide the needed incentive for the Association members finally to relocate across NC 421 farther from the ocean hazard AEC, thereby reducing the public costs of inappropriately sited development and reducing the risks to life, property, and amenities.

The CRC also emphasized that:

Granting any more extensions to allow [The Riggings] more time to pursue its latest proposals would no longer preserve substantial justice because to do so would essentially constitute a permanent variance for [The Riggings], while allowing only truly temporary sandbag structures for other threatened structures along the coast.

After receiving notice of the denial of the extension, The Riggings sought a review of the CRC decision by the Superior Court of New Hanover County. The Superior Court ruled that the CRC had made several errors in denying the extension request. First, the court found that the CRC applied an incorrect legal standard in evaluating the hardship to which The Riggings would be subjected. The CRC looked at whether the hardship was unreasonable. However, the court pointed out that the variance statute plainly states that the appropriate criterion is whether the hardships would be unnecessary. Second, the court stated that the CRC improperly examined the options available to the owner of property. In Williams v. NC Dep’t of Natural Resources, (10) the North Carolina Court of Appeals held the CRC must adjudicate variance requests based on the characteristics of the land at issue, not the characteristics or circumstances of the owner. “[W]hether or not the landowner owns other property is irrelevant and insufficient” to support a finding that no unnecessary hardship exists. (11) Consequently, the Superior Court held that ”[b]y examining and placing reliance on the FEMA grant and the fact that the [Riggings] owned additional property where the project might be located, the CRC [based] its denial…on impermissible considerations…” (12)

Finally, the Superior Court found that the CRC lacked evidence to support its denial of the variance. The court observed that the CRC “rubber stamped” the contention of the Office of the Attorney General (which argued against the Petitioners during the CRC’s December 2008 hearing) in arriving at its decision. Accordingly, the Superior Court remanded the case to the CRC with instructions to apply the correct legal standards and to affirm or deny the variance request based on its review and evaluation of the stipulated facts, instead of wholesale adoption of the State’s position.

After remand from the Superior Court, the CRC again denied a variance request at its April 29, 2009 meeting. The position taken by the CRC in its most recent denial markedly departed from its earlier positions. In the CRC’s 2000 and 2005 decisions granting The Riggings’ requests for extensions, the CRC agreed with The Riggings that it had satisfied all the statutory requirements for a variance. However, in its 2008 denial, the CRC stated The Riggings had not satisfied any of the statutory requirements. In its April 2009 denial of the variance request, the CRC stated that The Riggings has shown the existence of only two of the requirements: (1) that its actions did not bring about the hardship; and (2) that the hardship resulted from actions particular to its property. However, the CRC decided that: (1) The Riggings did not face an unnecessary hardship; and (2) that granting the variance would not be consistent with the spirit of the law, contribute to the public welfare, or preserve substantial justice.

In concluding that The Riggings did not face an unnecessary hardship, the CRC also relied on the Williams case, which stated that “pecuniary loss alone is not enough to show an ‘unnecessary hardship’ requiring a grant of a variance.”(13) However, while Williams holds that pecuniary loss alone does not constitute an unnecessary hardship, the Court of Appeals nevertheless stated that regulatory agencies should consider it as a factor. (14) Thus, the CRC could have looked at the sum that The Riggings would have paid for relocation and decided that it did constitute an unnecessary hardship. Instead, the CRC emphasized the State’s statutory ban against the construction of permanent erosion control structures in ocean shorelines. (15) The CRC also reiterated State policy regarding sandbags by stating that “sandbags are intended to be a temporary erosion control structure, and this sandbag revetment has been in place for almost 24 years.” (16) In short, the CRC decided that granting another variance would be tantamount to allowing a permanent erosion control structure.

Conclusion

The CRC granted numerous extensions to The Riggings “in order to allow the Petitioner to explore various options for protecting Petitioner’s structure at this site.” (17) Thus, when The Riggings decided to reject the FEMA grant on the grounds of expense and mortgage issues, the CRC was forced to deny a further extension, a decision that it deemed environmentally sound. Whether it was a legally correct decision is yet to be determined, since The Riggings has challenged the CRC’s April 2009 decision.

The Riggings situation, on one hand, presents a tough and unique set of facts. On the other hand, it is representative of the difficult coastal development policy choices confronting North Carolina in the 21st century. Both natural and human forces have interacted in such ways to preclude almost all viable options The Riggings has available to it. The choice now is to either modify the statutory ban on permanent erosion control structures, or to allow The Riggings development to face, and eventually succumb to, the forces of the sea.

The general policy of North Carolina’s coastal management plan is to either protect endangered structures through beach nourishment or relocate them to a safer site. If sea-level rise predictions are correct that storms and other forces of nature accelerate shoreline erosion, and if funds are not available for beach nourishment, then the State may have tough choices to make. In the future, the State may have to decide which areas of the coast to protect through expensive beach nourishment projects, which areas to protect by seawalls or other hardened structures, and which areas to leave to the forces of nature. Though real estate often brings this problem into focus, the choice involves more than a decision about protecting real estate. The choice also involves how to protect community infrastructure and a rich natural and human history. In addition, the State’s dry sand beaches are an irreplaceable natural treasure, a public trust resource, and an economic boon to North Carolina’s coastal economy. North Carolina’s beaches, which bring in more than $10 billion in tourism to the state’s economy every year, represent an inheritance that should not easily be sacrificed. Any change in the permanent erosion control structure ban must carefully consider both the immediate and long-term consequences, and weigh individual circumstances against sound state-wide beach management policy.

Footnotes

1 . N.C. Gen. Stat. §113A-115.1 (2008). Originally a CAMA rule, the General Assembly codified what it considered to be a successful policy.

2. ORRIN H. PILKEY ET. AL., THE NORTH CAROLINA SHORE AND ITS BARRIER ISLANDS: RESTLESS RIBBON 90 (Duke University Press 1997).

3. 15A N.C.A.C. 7H.0308(a)(2)(B) (2007).

4. 15A N.C.A.C. 7H.0308(a)(2)(J) (2007).

5. 15A N.C.A.C. 7H.0308 (a)(2)(G) (2007).

6. 15A N.C.A.C. 7H.0308 (a)(2)(H) (2007).

7. Several owners refused to comply, and they are currently seeking an injunction to prevent the CRC from removing the sandbags.

8. Under previous CAMA rules, all a party needed to do was request an extension of time. However, under current CAMA rules, the party must now apply for a variance. A “variance” is the legal term for an exception to a regulatory agency’s rules. In order for such an exception to be granted, a petitioner must formally request from the agency a time-limited legal exception. Any regulatory agency, in any field, may grant a variance. Because a variance to a removal for sandbags would function simply as an extension of the original permit, this article refers to a variance from CAMA sandbag rules simply as an “extension.”

9. N.C. Gen. Stat. §113-120.1 (2008) (laying out the four variance criteria).

10. 144 N.C. App. 479 (2001).

11. Id. at 485.

12. The Riggings v. NC Coastal Resources Comm’n, No. 08-CVS-1069 (February 18, 2009).

13. Williams, 144 N.C. App. at 486 (quoting Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946)).

14. 144 N.C. App. at 486.

15. N.C. Gen. Stat. §113A-115.1.

16. The Riggings Homeowners’ Association, CRC-VR-06-33 (N.C. Coastal Resources Comm’n) (May 21, 2009).

17. Id.

By Lisa C. Schiavinato, J.D.; Law, Policy and Community Development Specialist, North Carolina Sea Grant; Co-Director, North Carolina Coastal Resources Law, Planning and Policy Center

Wind energy production in ocean and coastal waters is a fledgling industry in the United States. It is the subject of rigorous debate, primarily due to the controversy surrounding the Cape Wind project — a 130-turbine offshore wind facility proposed for Nantucket Sound near Cape Cod, Massachusetts. Cape Wind was the first proposed offshore wind project in the nation, and it began applying for permits in 2001. The project became hotly contested as the federal, state, and local governments began their review, and the project has yet to move beyond the permitting stage. Project review remains ongoing, and Cape Wind anticipates the permitting phase will conclude in 2008, with the facility constructed and operational in 2010.(1)

The national debate on renewable energy and climate change has prompted other states to contemplate offshore wind energy production. Since Cape Wind was proposed, other offshore wind projects have been proposed for waters off the coast of New York, (2) Texas, and Delaware. As more information is gathered regarding offshore wind resources in the United States, and as the technology advances, more coastal states may take a closer look at their own potential to harvest wind resources for everyday energy use.

North Carolina, particularly along its coast, does have strong wind resources in certain areas. (3) Given that offshore wind energy development is an emerging industry in this country, North Carolina may see a proposal for such a project in the future. Although North Carolina currently has no offshore wind development, a recent proposal submitted to the N.C. Utilities Commission for a three-turbine wind facility in coastal Carteret County is causing a stir. (4) Called the Golden Wind Farm, its turbines would generate 4.5 megawatts of electricity that would be sufficient to power approximately 900 homes. (5) The applicant would sell the power to Progress Energy. (6) In response to this proposal, the Carteret County Board of Commissioners adopted a nine-month moratorium on issuing permits to build wind turbines. (7) The applicant for the Golden Wind Farm project acknowledges that the interim moratorium may delay the permitting process, but remains hopeful that the project will not be deterred. (8) The purpose of the moratorium through Dec. 2008 is to allow the county the opportunity to study wind energy technology and its use and regulation in coastal areas throughout the nation. (9)

This article will provide a glimpse into the federal and state legal framework regarding wind energy development in ocean and coastal waters. It also will explore the potential for an offshore wind project to be permitted in the state given the current state of the law, and whether changes in or additions to state law are needed for the state to pursue offshore wind energy development. The article will not discuss the viability of offshore wind as a cost-effective source of energy for coastal North Carolina.

Wind Energy Resources in North Carolina

Studies have shown that North Carolina has wind resources significant enough to make wind energy a viable option for the state, particularly along the Outer Banks. (10) Offshore wind facilities potentially could be constructed in either sounds, state coastal-ocean waters, or in federal ocean waters. Because offshore wind projects include placing permanent structures in public trust waters, federal permits, state permits, or both will be required for construction, operation, and maintenance of the facility. Offhsore wind facilities not only include wind turbines and platforms, but also transmission cables to route energy to land, as well as substations and other associated infrastructure. Dredging and construction activity also would be required. (11) Therefore, even if a wind facility were sited in federal waters, state permits would be required under most circumstances. What follows is an overview of the federal and state laws that likely would apply, should a wind energy development project be proposed off the coast of North Carolina.

Federal Law

At the time the Cape Wind project was proposed, the United States had no policy or regulatory framework regarding wind energy development in federal waters. This was one of the chief criticisms of Cape Wind in the beginning. Commentators remarked on the potential detriments of ad hoc permitting of offshore wind projects, unless the nation addressed the issue. The Energy Policy Act of 2005 (EPAct) addressed offshore wind energy peripherally by vesting authority within the Minerals Management Service (MMS) of the Department of the Interior over renewable energy and alternate uses of the nation’s offshore public lands along the Outer Continental Shelf (OCS). (12) Authority was vested within the MMS because of its environmental, engineering, and regulatory expertise managing energy and mineral resources in federal waters.

Should another offshore wind project be proposed in federal waters, other federal agencies — such as the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and NOAA Fisheries — also would be involved in the review process to relay their expertise. Federal laws that may apply include, but are not limited to, the National Environmental Policy Act (NEPA), Clean Water Act (CWA), Clean Air Act (CAA), Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), Migratory Bird Treaty Act (MBTA), Rivers and Harbors Act (RHA), Outer Continental Shelf Lands Act (OCSLA), and Coastal Zone Management Act (CZMA). Below is a brief overview of a few of the federal laws that likely would apply to a wind project sited in federal waters.

The NEPA was passed in 1969 and requires the federal government to take into account environmental impacts when issuing permits to allow federal actions. When a federal action is proposed, the lead federal agency conducts an Environmental Assessment to determine whether the project’s impacts are significant enough to warrant a full Environmental Impact Statement (EIS), which requires more rigorous review. This more rigorous review includes an analysis of alternatives to the project that would have fewer impacts than the original proposal. Such a review also would discuss why these alternatives were eliminated from consideration during the NEPA process. If the lead agency determines instead that a proposed project will not have a significant impact on human health or the environment, then a Finding Of No Significant Impact, or FONSI, is issued. However, it is likely the impacts of a proposed offshore wind project would be deemed significant enough to warrant a full EIS, given the nature and scope of this type of project. The requirement of preparation of an EIS triggers analysis under other federal laws as well, such as the ESA, CWA, and RHA. The additional laws that may apply to a proposal for an offshore wind energy project are discussed below.

The CZMA was passed in 1972 “to preserve, protect, develop, and where possible, to restore or enhance” the nation’s coastal resources. (13) The CZMA encourages participation of coastal states and provides financial and technical assistance as incentives. For a state that wishes to participate, it must first develop a coastal management plan that defines permissible land and water uses within that state’s coastal zone. This plan is then submitted to the National Oceanic and Atmospheric Administration for approval. Once an approved state plan is in place, federal activities or project proposals that require a federal permit can be subject to the Consistency provision of the CZMA. The Consistency provision requires an activity to be “consistent” with the enforceable policies of the affected state’s coastal management plan. (14) If the affected state determines the activity is “inconsistent” with its coastal management plan, then the state may negotiate conditions in order for the activity to be deemed consistent. However, if negotiations cannot be reached and the inconsistency determination remains, then the applicant may appeal the state’s decision to the Secretary of the Department of Commerce, who has the authority to override the state. (15) However, unless the Secretary of Commerce overrides the state’s objection, federal agencies are unable to issue to the applicant any necessary federal licenses or permits. (16)

A wind energy development project sited in federal waters likely would involve the leasing of submerged lands from the federal government. (17) Coastal states only have jurisdiction over submerged lands up to three geographical miles. (18) If a party wishes to lease submerged lands beyond this limit (e.g., to construct and operate a wind energy development facility), then a submerged- lands lease from the Department of the Interior is needed. (19) The U.S. Army Corps of Engineers has jurisdiction over navigable waters of the United States, and Section 10 of the RHA requires a permit for structures or work in or affecting those waters. (20) An offshore wind project by its very nature would require structures to be built over navigable waters, and thus, a Section 10 permit would be needed. An offshore wind project likely would involve impacts to protected species. If so, review under the ESA, MBTA, and MMPA also would be needed. Additional review would be required if a project would affect fisheries or essential fish habitat. (21)

North Carolina Law

There is no North Carolina statutory or regulatory framework currently in place that governs offshore wind energy. However, there are current statutes that may apply and permits that may need to be obtained. This section presents an overview of potentially relevant states laws, including the Coastal Area Management Act (CAMA), North Carolina Environmental Policy Act (NCEPA), North Carolina Dredge and Fill Act, North Carolina Public Utilities Act, and North Carolina Archives and History Act. However, it is not clearcut which law would control the permitting process.

A major question is whether an offshore wind project would fall under the jurisdiction of CAMA or the state Public Utilities Act. This question seems to depend on the definition of “development” set forth in CAMA, which would require a permit from the Coastal Resources Commission (CRC) if a proposed project will be located in an Area of Environmental Concern. (22) “Development” is defined as:

Any activity in a duly designated area of environmental concern… involving, requiring, or consisting of the construction or enlargement of a structure; excavation; dredging; filling; dumping; removal of clay, silt, sand, gravel or minerals; bulkheading, driving of pilings; clearing or alteration of land as an adjunct of construction; alteration or removal of sand dunes; alteration of the shore, bank, or bottom of the Atlantic Ocean or any sound, bay, river, creek, stream, lake, or canal; or placement of a floating structure in an area of environmental concern identified in G.S. 113A-113(b)(2) or (b)(5). (23)

The statute then lists exceptions to the definition of “development.” One important exception is “work by any utility and other persons for the purpose of construction of facilities for the development, generation, and transmission of energy to the extent that such activities are regulated by other law or by present or future rules of the State Utilities Commission…” (24) It is possible that an offshore wind project may not be considered “development” under CAMA, if it is regulated by the State Utilities Commission. However, the likelihood of this is arguable. The italicized part of the “development” exception contains a qualification that the exception applies when pertinent activities are regulated by other law or by present or future rules of the State Utilities Commission. Given that the Utilities Commission does not currently have rules in place to govern alternative energy facilities in ocean or coastal waters, it is possible the CRC still may have authority to require that a proposal to place such facilities in Areas of Environmental Concern comply with existing CRC rules. (25)

If an offshore wind project proposal were to fall under CAMA, the applicant would need to obtain a CAMA permit from the CRC. It would be considered a major development requiring a CAMA “major development permit.” (26) In order to obtain the permit, an applicant would be required to file an application and submit the appropriate fee to the Department of Environment and Natural Resources (DENR) and designated local official if seeking a permit from a county or municipality. (27) Because any such facility would be located in estuarine or ocean waters, which are navigable waters of the United States, it also would need federal permits.

A CAMA permit is generally sufficient if the following permits are necessary: to dredge and fill, for easements to fill, or for water quality certification. Moreover, an offshore wind facility potentially could impact underwater historical artifacts, such as shipwrecks. The N.C. Department of Cultural Resources has the authority to adopt rules to preserve or protect shipwrecks, vessels, cargoes, tackle, and underwater archaeological artifacts to which the state has title. (28) While the legislation does authorize permits to explore or salvage such underwater artifacts, (29) there is no indication of any permit that may be obtained for their destruction.

NCEPA authorizes municipalities to require environmental impact statements by ordinance. (30) Such ordinance requirements, however, will not be needed for those who have completed a comparable document at the state level. (31) Furthermore, an offshore wind facility would be subject to an easement or a lease of state-owned submerged lands. (32)

The Need for a North Carolina Policy on Wind Energy Development

North Carolina could consider developing a management strategy to address offshore wind energy development. The General Assembly attempted to address renewable energy during the 2007 legislative session when House Bill 1821 was introduced. House Bill 1821, if passed into law, would vest authority over the siting of wind energy facilities within DENR. (33) However, as of June 2008 this bill has not been referred out of committee. The proposed legislation is limited in scope because it does not cover all forms of alternative energy facilities placed in coastal and ocean waters, and more comprehensive legislation would be beneficial to the state.

Despite the temporary moratorium on wind turbines in Carteret County, the proposal for the Golden Wind Farm may lead to the proposal of more projects. The Golden Wind Farm proposal already has sparked discussion and criticism. Residents that live near the proposed site have expressed aesthetic concerns, particularly because the project would be located near a scenic highway. (34) Carteret County commissioners have placed a nine-month moratorium on issuing permits for wind turbines until a study on wind energy technology is completed. (35)

The proposal for the Golden Wind Farm, although not an offshore project, highlights the need for North Carolina to consider a comprehensive policy regarding wind energy development. Today, land-based wind energy facilities have been proposed. Tomorrow may bring proposals for offshore wind energy facilities in North Carolina’s sounds or ocean waters. It is important for North Carolina to formulate policy on offshore wind before such a project is proposed, so the state will have a better road map on how to address the issues and potential impacts on North Carolina’s ocean and coastal resources and its communities. Moreover, having regulations in place at the earliest possible stage would provide meaningful policy guidance to the CRC and provide a regulatory framework that could encourage (or discourage) investment in specific projects. Furthermore, if a project is proposed for siting in federal waters, any North Carolina wind energy facility regulations or restrictions also would be applicable to it. The state also would benefit from incorporating these regulations into its coastal management plan. The benefit is that North Carolina would then be in a position to review projects proposed for federal waters, based on the Consistency authority granted to coastal states by the CZMA. This would ensure that North Carolina’s interests are fully protected, even in a federal leasing or permit process for a wind energy project that would impact the state’s coastal communities and resources.

Footnotes

1. Cape Wind, “Cape Wind Timeline,” at http://www.capewind.org/article26.htm (accessed February 1, 2008).
2. However, the project for Long Island Sound, proposed by the Long Island Power Authority, was terminated in August 2007 due to cost. Harrington, Mark, LIPA Chief Kills Wind Farm Project, Newsday, August 23, 2007, at http://www.newsday.com/business/ny-bzwind0824,0,7647935.story (accessed February 8, 2008).
3. See NC Solar Center, “Coastal Wind Initiative,” at http://www.ncsc.ncsu.edu/programs/the_coastal_wind_initiative.cfm (accessed February 1, 2008).
4. Wade Rawlins, Coastal Wind Farm Proposed, The News & Observer, February 6, 2008, at http://www.newsobserver.com/news/story/926691.html (accessed February 6, 2008).
5-6. Id.
7. Book, Sue, Carteret Commissioners Adopt Moratorium On Windmills, The Sun Journal, March 3, 2008,
at http://www.newbernsj.com/news/wind_38676___article.html/county_moratorium.html (accessed April 1, 2008).
8-10. Id.
11. To learn more about how a wind turbine works, visit the U.S. Department of Energy, “How Wind Turbines Work,” at http://www1.eere.energy.gov/windandhydro/wind_how.html (accessed February 1, 2008). To learn more about how an offshore wind facility works, visit British Wind Energy Association, “How An Offshore Wind Farm Works,” at http://www.bwea.com/offshore/how.html (accessed February 1, 2008).
12. 43 U.S.C. § 1337.
13. 16 U.S.C. § 1452.
14. 16 U.S.C. § 1456.
15-16. Id.
17. For transmission cables and other support that pass over state submerged lands, state permits would be needed.
18. See Submerged Lands Act, 43 U.S.C. §§ 1311-1314. The exceptions to this rule are Texas and he west coast of Florida. Their jurisdiction extends out nine geographical miles because these states had established their jurisdictions over a larger area before statehood. 43 U.S.C. §1312.
19. The EPAct gave the Department of the Interior the authority to develop and implement an alternative energy and alternate use program. See Pub. L. No. 109-58, 119 Stat. 868 (codified in 26 U.S.C. and 42 U.S.C.). See also OCS Alternative Energy and Alternate Use Programmatic Final EIS at http://ocsenergy.anl.gov/index.cfm.
20. 33 U.S.C. § 403.
21. See generally Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. See also essential fish habitat regulatory guidelines, 50 C.F.R. § 600.
22. See N.C. Gen. Stat. § 113A-118.
23. N.C. Gen. Stat. § 113A-118(5)(a).
24. N.C. Gen. Stat. § 113A-118(5)(b)(3) (emphasis added).
25. Id.
26. A “major development” means “any development which requires permission, licensing, approval, certification or authorization in any form from the Environmental Management Commission, the Department of Environment and Natural Resources, the Department of Administration, the North Carolina Mining Commission, the North Carolina Pesticides Board, the North Carolina Sedimentation Control Board, or any federal agency or authority; or which occupies a land or water area in excess of 20 acres; or which contemplates drilling for or excavating natural resources on land or under water; or which occupies on a single parcel a structure or structures in excess of a ground area of 60,000 square feet.” N.C. Gen. Stat. § 113A-118(d). See also N.C. Gen. Stat. § 113A-118(a).
27. N.C. Gen. Stat. § 113A-119.
28. N.C. Gen. Stat. § 121-123 (2007); According to N.C. Gen. Stat. § 121-122 (2007), the state has title to “all bottoms of navigable waters within one marine league seaward from the Atlantic seashore measured from the extreme low watermark; and the title to all shipwrecks, vessels, cargoes, tackle, and underwater archaeological artifacts which have remained unclaimed for more than 10 years lying on the said bottoms, or on the bottoms of any other navigable waters of the State, is hereby declared to be in the State of North Carolina, and such bottoms, shipwrecks, vessels, cargoes, tackle, and underwater archaeological artifacts shall be subject to the exclusive dominion and control of the State.”
29. N.C. Gen. Stat. § 121-125.
30. N.C. Gen. Stat. § 113A-8(a).
31. N.C. Gen. Stat. § 113A-8(b).
32. N.C. Gen. Stat. §§ 146-11 and 146-12.
33. H.B. 1821, Gen. Assem., 2007 Sess. (N.C. 2007) is entitled “An Act to Establish a System of Permits to be Issued by the Department of Environment and Natural Resources for the Siting of Medium and Large Energy Systems and to Require Operators of these Wind Energy Systems to Obtain a Permit to Site their Wind Energy Systems.”
34. Book, supra note 7.
35. Id.

By Joseph Kalo, Graham Kenan Professor of Law
Co-Director, NC Coastal Resources Law, Planning and Policy Center

The increasing number of dockominium-style marinas in North Carolina’s inner coastal waters troubles many people because the marketing of these developments gives the appearance of either the improper sale of, or the granting of, exclusive rights to public trust waters to private entities and people. The ultimate goal of a dockominium marina is, by one legal device or another, to transfer the exclusive right to use a particular boat slip within the dockominium marina to individual boat owners. Prices for dockominium slips vary based on footage. In North Carolina, reported prices can reach as much as $90,000 for larger slips, not including annual maintenance and other fees. Elsewhere along the east coast, the prices and fees are even higher.

Dockominiums come in many different sizes and shapes. Some dockominiums may be created through a conversion of an existing marina.1 Others may be new construction. A number of the dockominiums are marinas built in connection with an adjacent planned community or subdivision. A dockominium may lie over public trust waters, or it may be built over an upland area that has been dug out and connected to public trust waters.2 The latter type of dockominium does not raise questions about the sale or granting of exclusive rights to public trust waters. In that situation, water bottom is not public trust submerged land, and title remains in private hands.

Title to the dockominium piers, ancillary structures and facilities, and usually the adjacent shoreline frontage will be held by the dockominium operator, which may be a separate business entity or a non-profit corporation, such as a sailing club or the planned community’s property owners’ association. The typical purchaser of a slip in a dockominium development receives the exclusive right to use a particular slip and rights in common with other slip owners to the use of the other dockominium common areas.

Riparian Rights: The Foundation for Dockominiums

The underlying legal foundation for a dockominium is based on the existence of riparian rights. The owner of the dockominium structure owns the adjacent riparian shoreline. With ownership of the riparian shoreline normally comes the qualified right to erect piers from the shore to have access to water deep enough to navigate in a sound, tidal river or creek or other navigable waterbody. The right is qualified because it is subject to such rules and regulations as the General Assembly prescribes3 and because Section 146-12 of the North Carolina General Statutes requires that an easement be obtained from the N.C. Department of Administration for any marina placed in public trust waters after October 1, 1995.

Is the Riparian Right to “Pier Out” Severable in North Carolina?

With piers, of course, comes the incidental right to moor boats in the slips that lie over public trust waters. In reality, it is this incidental right to moor a boat in a particular slip that is being transferred to a purchaser as an exclusive right, and this is where the legal issue arises. If the purchaser of a dockominium slip does not hold title to any of the adjacent riparian land, then she or he is not a riparian owner. Normally, only riparian owners have and can exercise riparian rights. Thus, the sale of a dockominium slip without a grant of some title to adjacent riparian land would present the question — may the right be severed and transferred in whole or part to someone who does not own any riparian land?
In a majority of states, such a severance is permissible. However, in some states the riparian right to erect piers for access to navigable waters cannot be transferred except by transfer of title to riparian land. In other words, the right to “pier out” belongs only to an owner of riparian land, and only that owner can exercise this right.

North Carolina follows the minority rule and does not permit severance. Although the issue has never been directly decided by the North Carolina Supreme Court, it has stated in its 1903 decision Shepard’s Point Land Co. v. Atlantic Hotel that:

This Court has held that “riparian rights being incidental to land abutting navigable waters cannot be conveyed without a conveyance of such land…”4

This principle is buttressed by language of General Statute Section 146-12, requiring easements for structures placed in public trust waters, such as dockominiums. In 1995, the General Assembly made significant changes to Section 146-12, adding Subsection 146-12(g), among other provisions. Section 146-12(g) provides that:

[t]he terms of each easement [granted] shall provide that the easement:

(1) is appurtenant to specifically described, adjacent riparian or littoral property and runs with the land.

The use of this particular, and presumably carefully chosen, language effectively prohibits any severance of the riparian right. Under generally accepted property law principles, an “appurtenant” easement that “runs with the land” is a right that attaches only to the described riparian or littoral property and passes only with a legal transfer of title to the property to which it is appurtenant. Such easements by their very nature are not severable. Therefore, as to dockominiums constructed in public trust waters, as a matter of common law and statutory law, there cannot be a legitimate transfer to purchasers of slips in the dockominium of the riparian right to pier out. That means it is impermissible for a developer to sell a unit in a condo along with a particular slip in an adjacent dockominium when the owner of the condo does not hold title to any riparian shoreline. Such a transfer would be an invalid attempt to sever riparian rights, and the purchaser would not obtain any “title” to the slip.

Dockominium Legal Structure: Avoiding the Severance Issue

Although it may not be legally permissible to sever the riparian right to pier out, there are a number of ways to structure a dockominium to sidestep the severance issue, so long as the ownership of the marina facility is tied to the ownership of some adjacent riparian land. Creative real estate lawyers are using all of them.

For example, if a sailing club is formed to own the adjacent riparian land and the marina, it may assign to individual members the exclusive right to a particular slip. This right could then be transferred with the transfer of the club membership. Another method is to put title to the shoreline and the marina in a property owners’ association, which is part of a larger residential development, such as a condominium complex. Owners of units within the larger development, as members of the property owners’ association, could be assigned exclusive rights of use to particular slips. The right to use the slip would then pass with the passage of title to the condominium unit. A third means is to carve out a narrow strip of riparian land adjacent to the marina. Each purchaser would be granted an undivided interest as a “tenant in common” in the adjacent riparian land and the marina facility. Each “tenant” would be given exclusive rights to a particular slip.

In each situation, no severance occurs. In the first instance, each slip “owner” is a member of the club that owns the adjacent riparian land and the marina, and they continue to possess all the associated riparian rights. The use of a particular slip is a right of membership and does not involve any transfer of title. In the second situation, the property owners’ association operates much like the sailing club. In the third situation, each “tenant in common” is legally considered to be the owner of the riparian land, with all the rights of riparian ownership. The right to use a particular slip involves an accepted legal means of allocating among co-owners the rights to use co-owned property. Finally, the same result could be accomplished through the use of a long-term lease by the owner of the dockominium facility. The lease would grant the right to use a particular dockominium slip to the lessee for the term of the lease.

In each example, the exclusive right to use a particular slip in the dockominium ends up with the “purchaser.” Which legal device is used may depend on a number of business factors such as marketing strategies, financing considerations, insurance, and linkage to associated upland residential development. Consequently, despite appearances otherwise, these forms of dockominiums do not involve a legally improper sale or grant of exclusive rights to purchasers. Large profits may be made by the dockominium developers, but these developments fit firmly within accepted, traditional principles of North Carolina property law.

The Easement Fee Structure: Does It Violate the Exclusive Emoluments Clause?

Despite the legality of the various forms of dockominiums, the appearance persists of private interests profiting from the sale of exclusive rights to areas of public trust waters.

Underlying this perception is the easement fee structure the General Assembly created in 1995 when it amended Section 146-12. Under the statutory fee structure, the fee for a 50-year easement is $1,000 per acre of “footprint coverage.”5 Therefore, if a marina occupies 10 acres of public trust waters, the maximum fee for a 50-year easement is $10,000.

However, in reality the state collects even less. The amount of the “riparian credit” would be deducted from that fee. The riparian credit is calculated by multiplying the linear number of feet of shoreline by a factor of 54. Consequently, if the shoreline associated with the dockominium was 500 feet, the credit would be $27,000. Thus, the fee for the easement would be nothing! Owners of marinas in existence prior to Oct. 1, 1995 were not even required to obtain an easement. Section 146-12(c) made such easements purely voluntary. And, at the time Section 146-12 was amended, there was not much incentive to obtain one.6 It is not surprising then, with dockominium slip prices being so high and the easement fee so low, that there is a perception of private profiteering surrounding dockominiums.

It has been suggested that the low fees for easements may violate the North Carolina Constitution’s Exclusive Emolument Clause. This clause states that: No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration for public services.7

The argument is that the below market-value fee for a marina easement over state-owned public trust lands constitutes the granting of an exclusive privilege to use State property, without either a public benefit or fair compensation being paid to the State. However, under the modern test for exclusive emoluments used by the North Carolina courts, the easements granted under Section 146-12 would not be unconstitutional. In Emerald Isle v. State, the Court stated that a statute does not create an exclusive emolument if:

(1)the exemption is intended to promote the general welfare rather than the benefit of the individual and (2) there is a reasonable basis for the legislature to conclude the granting of the exemption serves the public interest.8

Section 146-1, which is the first Section in the subchapter of which Section 146-12 is a part, provides the rationale for the granting of easements under Section 146-12. Section 146-1 states:

[T]he State is unable to provide the necessary access for its citizens to exercise public trust rights and, therefore, recognizes the role that publicly and privately owned piers, docks, wharves, marinas, and other structures located in or over State-owned lands covered by navigable waters generally serve in furthering public trust purposes.

Based on existing case law, the courts are likely to defer to this statement by the General Assembly that Section 146-12 easements, by increasing access to public trust waters, promotes the general welfare rather than the interests of marina owners. One could argue that if the State’s goal is to provide the public with access to public trust waters, the State should require all marinas to provide some slip space available for general public use. However, on the other hand, even wholly private marinas aid in providing some of the necessary access that the State is unable to provide itself. Therefore, the granting of low fee easements to private marina facilities is, in fact, in exchange for some public service and not a violation of the Exclusive Emoluments Clause.

What Can Be Done to Assure the Public Adequate Compensation for Use of Public Trust Waters?

Earlier this year, in its final report to the General Assembly, the North Carolina Waterfront Access Study Committee recommended that “the General Assembly re-examine and reformulate the State’s public trust submerged lands easement fee structure.”9 Such a re-examination is needed to ensure that the public, as represented by the State, is fully and fairly compensated by those making private use and profit from public trust assets. Such an examination is needed before even more dockominiums are constructed. As to those already in existence, until the easements expire, the political and policy choice has already been made.

Footnotes

1. Wayfarer Cove, located 12 miles up the Neuse River from Oriental, North Carolina, contains a dockominium created by renovating an existing marina.

2. The River Dunes development located where Broad Creek flows into the Neuse River contains a 400-slip dockominium created in this fashion.

3. See, e.g. Walker v. N.C. Department of Environment, Health, and Natural Resources, 111 N.C. App. 851 (1993).

4. 132 N.C.. 517, 541 (1903). The Shepard’s Point Court was quoting from an earlier decision in Zimmerman v. Robinson, 114 N.C. 39, 19 S.E. 102 (1894 ).

5. Allocated on a yearly basis, the developer of a dockominium would pay $20.00 for each acre of public trust waters occupied or enclosed by the marina facilities.

6. The deadline for submission of applications for voluntary easements was October 1, 2001.

7. North Carolina Constitution, art. I, Section 32.

8. 320 N.C. 640, 654 (1987)

9. Waterfront Access Study Committee Final Report,
April 13, 2007, p. 29.