The Coastal Resources Commission approved last week revised text that is meant to satisfy the latest objection from the Rules Review Commission regarding Jockey’s Ridge’s designation as an area of environmental concern.
The Coastal Resources Commission, or CRC, has been trying to get this text sorted since October 2023, when the Rules Review Commission objected to and removed 30 rules, including those for Jockey’s Ridge protections, as part of the 10-year periodic rules review process.
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According to the the North Carolina Department of Environmental Quality’s Division of Coastal Management, which carries out the rules and regulations set by the CRC, the text that had been up for review a few years ago was almost identical to what had been approved in 1984 for the centerpiece of Jockey’s Ridge State Park in Dare County.
Part of the text the Rules Review Commission most recently objected to reads: “(a) Description. Jockey’s Ridge is the tallest active sand dune (medano) along the Atlantic Coast of the United States. Located within the Town of Nags Head in Dare County, between US 158 and Roanoke Sound, Jockey’s Ridge represents the southern extremity of a back barrier dune system which extends north along Currituck Spit into Virginia.”
The CRC at its regular business meeting in Beaufort Hotel was briefed about the rules commission’s latest objection Wednesday during the annual rules review update, and again Thursday before voting unanimously to submit the amended text to the rules panel.
Daniel Govoni, policy analyst with the Division of Coastal Management, said Wednesday that a general statute directs staff to review and identify any rules that are unnecessary, burdensome or inconsistent. Rules that are considered necessary, go through the rules review process, and that includes being run through the Rules Review Commission.
Govoni said that just recently, the Jockey’s Ridge area of environmental concern permanent rules the Coastal Resources Commission approved Aug. 27 was sent to the Rules Review Commission and “they again have objected.”
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The reason this time, he continued, “is because the rule was split up into three categories: (a) being description, (b) being boundaries and (c) the use standards. They basically said that the description was unnecessary.”
When Coastal Resources picked up the discussion Thursday, Govoni reiterated that the rule was drafted into three parts, with a description explaining Jockey’s Ridge and its importance, and a boundary describing the area of environmental concern boundary and an accompanying map.
Govoni stated that the Rules Review specifically objecting to “the paragraph (a) description,” and that it “was not the same as the designation as under general statute.”
Coastal Resources was left with two options with a deadline of Dec. 1: either amend the rule to address the Rules Review objection, or submit a written response explaining why the rule won’t be changed.
Govoni said staff came up with the following proposed language as a way to meet the requirement: “Designation. Given the status of Jockey’s Ridge as a State Park, State Nature Preserve, complex natural area, and an area containing a unique geological formation as identified by the State Geologist, the Coastal Resources Commission hereby designates Jockey’s Ridge as an Area of Environmental Concern pursuant, as required under general statute.”
The amendment also included adding that “The AEC is located within the Town of Nags Head in Dare County, between US 158 and Roanoke Sound” to the boundaries explanation.
The Coastal Resources Commission’s legal counsel, Sarah Zambon, explained that the legal counsel for the Rules Review Commission was consulted on the proposed permanent language but, “just like I don’t speak for all of you, RC Council doesn’t speak for the RRC, but they have reviewed this language.”
Zambon continued that “the main issue was with the description of it being the tallest sand dune along the Atlantic Coast.”
Coastal Resources Chair Renee Cahoon pointed out that “this description just became a problem in August. Amazing. Amazing. After 40 years.”
About Jockey’s Ridge rules
The more than two-year back-and-forth between the two commissions began in early October 2023 over 30 rules undergoing the 10-year periodic review process.
“Development activities in and around the state park boundaries have been regulated by the administrative rules of the Coastal Resources Commission since the designation of Jockey’s Ridge as a Unique Geologic Feature Area of Environmental Concern in 1984,” division documents explain.
When the rules commission reviewed the 30 rules the division submitted, including Jockey’s Ridge as an Area of Environmental Concern and use standards, the rules panel removed the rules from the North Carolina Administrative Code and returned them to the Division of Coastal Management.
Coastal Resources filed a lawsuit shortly after contesting the Rules Review’s decision to remove the 30 rules, which is still in litigation.
The CRC then adopted emergency and temporary rules reestablishing the area of environmental concern and use standards that went into effect Jan. 3, 2024, and expired May 13, 2024, which the Rules Review Commission also objected.
Coastal Resources decided to move forward with permanent rulemaking on April 25, 2024, and adopted the permanent rule Nov. 14, 2024. The rules commission objected to the proposed permanent rule on Dec. 19, 2024, for failing to comply with public notice requirements. Staff said in documents that the terms of this objection had been satisfied.
A Wake County Superior Court judge in February of this year ruled in favor of Coastal Resources in the lawsuit that directs the codifier to “immediately return” the rules to the administrative code. Rules Review has since filed an appeal challenging the ruling and the Coastal Resources is due to submit a brief in response by Dec. 12.
The Coastal Resources Commission took up the subject again Aug. 27 and adopted permanent rules designating Jockey’s Ridge as an area of environmental concern and use standards. The Rules Review Commission objected on Oct. 30 to the recently submitted text for using the word “Description” because it is “not the same as a ‘designation’ as required under state law.”
The Coastal Resources Commission was given Dec. 1 as a deadline on the new proposed designation, which is an attempt to clarify the language going forward, Govoni said Thursday. In the time since the judge ruled that the Jockey’s Ridge rules would be returned to the administrative code, the division decided to amend and clarify the language.
If the suggested language meets final approval, the existing rule would be repealed and replaced with this new version.
Coastal Review will not publish Thursday and Friday in observation of the Thanksgiving holiday.
