Emerald Isle commissioners are expected to consider at their meeting later this month raising tenfold the town-imposed penalty for violations involving damage to primary dunes.

The proposal, one that would increase the fine from $1,000 to $10,000, was unanimously approved last Tuesday by the town’s planning board and comes on the heels of Emerald Isle’s issuance of a cease-and-desist order for construction on an oceanfront lot.

Remarque Home Builders LLC was slapped with a notice of violation and ordered to stop working at 3405 Ocean Drive until the dune destroyed at the property, as well as a designated natural area on the lot, have been fully restored.

“I’ve been working as a beach town manager for most of my career, nearly three decades, and this is the most egregious violation I have ever seen,” Emerald Isle Town Manager Frank Rush said by telephone late Wednesday.

Carving more than 5,600 square feet of primary dune that buffered the lot from the oceanfront beach is a violation of the Coastal Area Management Act, or CAMA, minor permit the builder’s obtained May 1, 2024.

The developer also violated a town ordinance that requires 35% of a lot remain as undisturbed natural area.

The owners of the Cedar Point-based limited liability company did not respond to Coastal Review’s request for comment in time for publication, but in a statement to WCTI-TV, the owners said they were “cooperating fully” with the state and the town.

“We are working cooperatively with the regulators to finalize a remediation plan, to restore the dune in accordance with their directives, and to satisfy any lawful fines or penalties that may be assessed. We will continue to do what the Town and CAMA ask for us until this matter is fully resolved. Dune stewardship along the coast is a shared responsibility.”

It is unclear why the dune was leveled.

“The questions being examined at our property, such as how construction, landscaping and dune work interact with CAMA requirements, are not unique to 3405 Ocean Drive,” Remarque Home Builders said in the email. “We understand that similar work has been undertaken by other owners on Ocean Drive without triggering comparable regulatory action.”

“We raise this not to deflect responsibility, but to underscore that these are questions faced by many property owners along the coast, and by the regulators charged with applying the same standards to each of them,” the statement continues. “We welcome a regulatory process that produces clear, consistent guidance and even-handed enforcement across all similarly situated properties, and we are committed to helping that process succeed here.”

Rush said that sand from the dune was redistributed on the 0.43-acre lot and, in some cases, pushed onto adjacent properties.

“Essentially they have to put it back the way it was,” he said.

That entails restoring the dune to its original height of around 25 to 26 feet and planting it with vegetation commonly used for dune stabilization.

Under the terms of the notice of violation, the developer will also have to resubmit a new, separate pool permit so town staff “can judge that application on its own merits after this violation is completely resolved.”

The town’s notice of violation issued April 22 came with a $1,000 fine. The developer also faces an estimated $1,000 state-imposed fine, according to the town. If the limited liability company does not come into compliance within 60 days, the developer will be fined $1,000 a day until work is complete.

“They’ve indicated they intend to rectify it much sooner than that,” Rush said.

The town will not issue a certificate of occupancy for the 7,300-square-foot, 12-bedroom, 13 ½-bath house listed for $6 million until the repairs and restoration have been completed, he said.

Remarque, in its statement, reiterated that the property is privately owned and asked the media and public to stay off the lot where the conspicuously missing dune has drawn the ire of area residents and property owners who’ve taken to social media to express their outrage.

“If this is not escalated appropriately, it opens the door for others to push limits, take shortcuts, and deal with the consequences later. That is not a precedent we can afford to set in Emerald Isle,” Jamie Vogel, a former town commissioner, wrote in a social media post last month.

“The oceanfront dunes provide critical storm protection, aesthetic, and ecological value for Emerald Isle and the Town places the highest priority on a healthy beach strand and dune field,” Rush wrote in the May edition of the town’s newsletter Emerald Tidings. “Collectively, the community has invested tens of millions of dollars in beneficial beach nourishment projects over the past 23 years, and these sane placement efforts have resulted in the significant augmentation of existing dunes and the construction of new dunes to advance the Town’s goals. The Town’s existing dune protection regulation and State CAMA regulations are carefully crafted to balance dune protection, private property rights, and overall storm protection for the entire community and the violations at 3405 Ocean Drive were clear and obvious.”

The Emerald Isle Board of Commissioners will hold a public hearing during its May 12 meeting at 7500 Emerald Drive before considering amending an ordinance to increase the penalty for violations that involve primary dunes. That meeting will begin at 6 p.m.

North Carolina’s Coastal Resources Commission is moving through the steps to update rules for building along high-hazard coastlines that are particularly vulnerable to erosion and flooding.

When the commission met April 16 in Ocean Isle Beach’s town hall, members voted unanimously to advance the rulemaking process to draft language amendments for ocean erodible areas and inlet hazard areas. Proposed changes include using the most recent data for erosion rates and maps for the two zones, which are classified as areas of environmental concern.

If approved, this will be the first time new inlet hazard boundaries have been updated since they were initiated in the late 1970s. The commission has been discussing revisions for decades, but the complicated process and public blowback have pushed talks of updates year to year.

Both inlet hazard and ocean erodible areas fall under the ocean hazard areas category of areas of environmental concern, which are the foundation for the Coastal Area Management Act permitting program. CAMA was enacted in 1974, along with the commission to adopt rules for legislation that protects the state’s coastal resources. The Division of Coastal Management, under the North Carolina Department of Environmental Quality, acts as staff to the commission.

Inlet hazard areas, or IHAs, encompass land along the narrow body of water that allows for tidal exchange between the ocean and inland waters. These swaths of shoreline are susceptible to inlet migration, rapid and severe erosion, and flooding. Land within the boundaries is subject to the commission’s development rules.

Ken Richardson, the division’s shoreline management specialist, told Coastal Review that in addition to the proposed updates to inlet hazard area boundaries, one of the primary changes under consideration is that erosion rate setbacks within inlet hazard areas will be based on inlet-specific erosion rates detailed in a 2025 report rather than the adjacent ocean erodible area, or oceanfront, rates, which is currently the case.

Because of limited data and resources, erosion rate setback factors within inlet hazard areas have been based on the rates of adjacent ocean erodible areas, essentially treating the inlet shoreline as an extension of the oceanfront.

“Given the rapid changes that can occur at inlets, this method has often resulted in setback factors that underestimate the true erosion dynamics of these areas,” according to the division. Erosion rates are used to determine how far back new construction must be from the shoreline.

Richardson said that, “Additionally, the rules would effectively ‘hold the line’ of existing development by preventing seaward expansion of new development in inlet areas that have experienced natural accretion.”

He referenced the “Inlet Hazard Area Boundaries, 2025 Update: Science Panel Recommendations to the North Carolina Coastal Resources Commission,” presented in August 2025 to the commission that explains “any accretion at most inlets is temporary and likely to reverse over time; maintaining this line helps reduce future exposure to erosion hazards.”

The commission’s Science Panel on Coastal Hazards was directed in 2016 to update IHA boundaries. Rules were in the process of being updated in 2019, but the COVID-19 pandemic paused draft rules from moving forward.

The “Science Panel recommended updating IHAs on a five-year cycle alongside oceanfront erosion rates, by the time work resumed after the pandemic, the next oceanfront study (2025) was already approaching.  As a result, some stakeholders asked the CRC to proceed with a coordinated update,” leading to the directive in 2023 to provide another five-year review, Richardson told Coastal Review.

Richardson explained during the meeting last week that the science panel analyzed for the 2025 update the state’s developed inlets, which are Bogue, New River, New Topsail, Rich, Mason, Masonboro, Carolina Beach, Lockwood Folly, Shallotte and Tubbs.

Panel Chair Dr. Laura Moore, professor of coastal geomorphology at the University of North Carolina Chapel Hill, presented the findings in the inlet hazard area boundaries report during the August 2025 meeting.

Last February, the Coastal Resources Advisory Council and a subcommittee reviewed the report and suggested deviating from the panel’s recommendation to measure setbacks from the hybrid-vegetation line because of concerns that existing structures would be nonconforming, and therefore harder to replace if something happened to the structure.

They decided to base the language on existing rules and continue to measure setbacks within inlet hazard areas from the actual vegetation line or pre-project line but not extend farther oceanward than the footprint of an existing structure, or, in the case with vacant lots, the landward-most adjacent neighboring structure, according to the division.

Richardson told the commission that another recommendation included amending the language for ocean erodible areas language citing the 2019 report to the “North Carolina 2025 Oceanfront Setback Factors & Long-Term Average Annual Erosion Rate Update Study: Methods Report report.”

Richardson noted that there are no boundary maps for ocean erodible areas because boundaries are measured from the vegetation line, which are dynamic and could change overnight, so the landward boundary is determined in the field.

Staff also proposes eliminating the distinction of residential or nonresidential for the type of structure, because “It doesn’t matter to erosion what the structure is being used for,” Richardson said.

Now, the proposed rule changes will go through the fiscal analysis. This step in the rulemaking process determines the financial impact of the proposed amendments. After the analysis is presented and voted on, the commission will decide to move on to the public comment period, then to final approval before sending it to the Rules Review Commission.

Septic tank update

Cameron Luck, a policy analyst for the division, briefed the commission on the work to develop rules for septic system siting, repair and replacement within ocean hazard areas.

He began by sharing what took place during a meeting March 30 in Buxton coordinated by the North Carolina Coastal Federation, with representatives from the North Carolina Home Builders Association, North Carolina Septic Tank Association, Outer Bank Association of Realtors, National Park Service, and from county health departments.

Attendees were brought up to speed on some of the issues surrounding failed septic tanks on the oceanfront, heard from Cape Hatteras National Seashore representatives about their policies and ongoing struggles and efforts to address both the threatened oceanfront structures and the failed septic tank systems and systems out on the beach

Department of Health and Human Services provided a quick synopsis of their process, focusing on the role within and alongside local health departments, with a discussion on how the department permits and cites septic tanks and how and failure enforcement.

Luck said that he and other division staff presented the most recently proposed rule language for discussion.

“We spent a good amount of time talking through the proposed language and some areas that could be improved,” Luck said.

Main points in the discussion focused on defining what type of repair would qualify for a permit.

“In other words,” Luck explained, would property owners be required to secure a permit if a filter or a section of pipe needs to be replaced, or does the rule need to be more focused on extreme failures.

Discussion also focused on whether the proposed rule changes should be applied coastwide or be more targeted to specific situations or locations.

“Perhaps, key takeaway from that meeting was a clear consensus among those attendees that some form of action is needed to limit the repair of failed septic systems on the ocean beach and to prevent them from remaining on the beach once they failed,” he said, adding that staff is working on those rule language updates.

SURF CITY – Kerri Allen acknowledged early on what was also obvious to her audience.

“I do not need to tell anyone in here we have a really high density of leases,” the North Carolina Coastal Federation’s coastal management program director said. “In our public trust waters, when you have that many users, there are going to be conflicts.”

Several people sitting inside the Surf City Municipal Complex’s town council chambers that April 14 afternoon nodded in agreement, eager to share their thoughts on the subject.

With either temporary or permanent shellfish leasing moratoriums in North Carolina waters to its north and south, Topsail Island’s waters have become a hot commodity for oyster growers.

There are now nearly 190 shellfish leases in the waters behind the 26-mile-long barrier island from the New River and its adjacent estuarine waters south to Topsail Sound.

That’s a roughly 46% increase from the collective number of leases in 2018 in Onslow and Pender counties.

The squeeze put on the waters around Topsail Island has prompted ongoing calls for a temporary moratorium on new shellfish leases in the area.

The Topsail Island Shoreline Protection Commission, or TISPC, which is composed of elected officials from each of the island’s three towns – Topsail Beach, Surf City and North Topsail Beach – initiated a request for a temporary pause on leases more than a year ago. Commissioners in Onslow and Pender counties did the same.

Shellfish lease moratoriums in the state may be enacted only by the North Carolina General Assembly.

On April 10, 2025, Rep. Carson Smith, R-Pender, introduced legislation requiring a statewide study on shellfish leasing and the current lease moratorium.

House Bill 841 made it no further than the Senate’s Rules and Operations Committee.

“If there is a temporary moratorium, we don’t feel that’s unreasonable,” Allen said last week.

A pause would give the Coastal Federation and North Carolina Sea Grant more time to talk with those who live along and use the waters around the island and come up with suggestions to help shape future policy that would protect the industry, make it sustainable long term, and ease user conflicts, she said.

Additional focus groups, including one for shellfish growers, will be scheduled this fall.

Meanwhile, a temporary moratorium that has been repeatedly extended since it was first enacted in New Hanover County in 2019 is set to expire in July.

“It’s very reasonable to say if we were able to open up some of these other areas that could help alleviate the pressure that this area is seeing,” Allen said. “A lot of the oyster growers that we work with in this region live in New Hanover County and they would love not to have to drive up here to take care of their farms. We are actively trying to get New Hanover to not extend their moratorium. I do not have a good feel, one way or another, how that’s going to go yet, but we are having those conversations.”

Surf City Mayor Teresa Batts said officials on the island do not intend to wait for a decision before asking for a temporary moratorium.

“I know you’re going to go through the procedural steps, but the TISPC, we’re not going to sit back and wait,” she said. “If we see that New Hanover County is trying to extend their moratorium, then we’re going to try to slide in there on their session and piggyback on their moratorium.”

The Coastal Federation, which publishes Coastal Review, and North Carolina Sea Grant teamed up last year to launch a Geographic Information System, or GIS, database pinpointing areas where leases may or may not be suitable in the waterways behind Topsail Island. The GIS database is anticipated to be published next year.

Recommendations shared with the organizations will help shape the North Carolina Strategic Plan for Shellfish Mariculture, a plan commissioned by the General Assembly in 2017.

This document is effectively the state’s roadmap for a sustainable shellfish industry. It’s not meant to be a fixed document, rather one that evolves as the industry evolves and conditions change, Allen explained, adding, “which they very much have changed since 2017.”

In the years since, the state has seen a shift where shellfish farmers are using floating gear to grow oysters in the water column, a method that allows them to maximize the spaces in which they grow their product.

Unlike cages that are placed on the waterbed, those in water column leases poke up from the water’s surface.

And, as more water column leases have been granted, complaints have mounted about their impacts to the viewsheds of waterfront properties, boating and kayaking access, and infringement on popular fishing spots.

Fishing guide Capt. Ray Brittain offered to take Allen and N.C. Sea Grant Extension Director Frank López on his boat, and on his dime, to show them how the leases affect his business.

“There’s so many PVC pipes out there,” Brittain said. “You don’t need a thousand PVC pipes to mark,” a lease area. “We can’t fish in those. I mean, mark your outer edge to show people where it is, but a lot of it is just unnecessary stuff.”

Brittain was among nearly 30 attendees at the April 14 meeting, where participants were asked to break into two groups to discuss concerns and recommendations that will be documented and shared with local elected officials, legislators, and state agency officials.

Those at the meeting in Surf City last week touched on a host of issues, raising concerns related noise associated with shellfish farming activities, nighttime navigation around shellfish leases, the density of leases around Permuda Island Reserve, and linear placement of leases along estuary island shorelines blocking anglers from following fish.

Some asked for shellfish farmers to be required to carry liability insurance, while others suggested the North Carolina Division of Marine Fisheries create a more robust public notification system announcing lease applications that would include property owners whose land is within and adjacent to the viewshed of a proposed lease.

Other recommendations included an implementation of buffers by moving leases further from shorelines based on specific locations within a waterbody, potentially increasing lease fees, decreasing the length of time a lease is valid, and the possibility of commissioning studies on the impacts of floating cages on the ecosystem.

The Coastal Federation and Sea Grant are accepting comments online through the Stump Sound shellfish mariculture planning – stakeholder input form through Aug. 1.

Notorious for its bloated and rigid regulatory structure, the U.S. Army Corps of Engineers’ Civil Works program is looking to slim down and speed up, all while redirecting resources and prioritizing programs.

As detailed in 12 memorandums released in March, the agency’s new initiative, “Building Infrastructure, Not Paperwork,” seeks “to deliver critical projects and programs for the nation more efficiently, sooner, and at less cost than the current ways of doing business,” Assistant Secretary of the Army for Civil Works Adam R. Telle stated in a February press release.

“This will eliminate bureaucratic delays and provide fast, clear decisions needed to save lives and empower our economy,” he added.

According to the release, the plan’s 27 initiatives are grouped under five categories: maximizing ability to deliver national infrastructure, cutting red tape, and focusing on efficiency, transparency and accountability and prioritization. The plan would not affect the Corps’ execution of its emergency response support to natural and human-made disasters.

Even by federal government standards, the Corps’ Civil Works is massive, managing about $259 billion in water resource assets and employing an estimated 37,000 full-time-equivalent employees, 98% of whom are civilians, according to a 2025 congressional report.

Through the initiatives, there are assurances that all projects are reviewed for the best path forward, said Eugene Pawlik with the Corps’ public affairs in an email, responding to questions from Coastal Review. “(The Corps) will be focused on strategically allocating available resources to prioritize the most pressing infrastructure needs across the country.”

The slow pace of the permit approval process will be addressed with new technology and geospatial tools that will expedite jurisdictional and permitting decision-making as well as reduce subjectivity in identification and elimination of Clean Water Act areas, Pawlik said.

Additional permitting goals, he wrote, include reissue and expand the existing Nationwide Permit program, eliminate barriers that prevent establishment of new mitigation banks, leverage private capital to modernize and expand generating capacity at Corps facilities, provide long-term leases with rights to additional revenues to entities willing to pay for capital improvements, and reform how the Corps conducts Section 408 reviews and engineering oversight.

The Section 408 program allows people or entities to make changes to a civil works project following reviews that are to verify that the changes do not have negative effects on the public interest or the project itself.

No additional funds nor dedicated budget item is being requested to implement the program.

“We believe the transformation initiatives will be a more effective use of annual appropriations,” Pawlik said.

But a closer look at just two interconnected and increasingly important tasks that the Corps is charged with in North Carolina and numerous other states — that is, dredging clogged inlets and nourishing eroding beaches by pumping in sand — may seem logical and sensible. But it’s not that simple.

With both activities being done more frequently, while sand supplies are becoming more sparse, the Corps is more often being asked to put the dredged sand from navigation channels on the beach. And more often, and to the enormous frustration of the permit applicant, it’s not permitted.

“In the Wilmington District, maintenance dredging often serves a dual purpose through the Beneficial Use of Dredged Material,” the Corps press release said, referring to a program created under the Water Resources Development Act of 2016. “The district uses beach-quality sand removed from navigation channels and inlets to provide for North Carolina’s coastal communities.”

On the Outer Banks, for instance, dredged material from Oregon Inlet in past years had been pumped onto an adjacent beach on the north end of Pea Island National Wildlife Refuge.

“Maintenance dredging is about more than just keeping the channels clear and ships moving; in North Carolina, it’s also a critical tool for coastal resiliency,” said Col. Brad A. Morgan, commander of the Corps’ Wilmington District. “By placing dredged sand back onto our beaches, we aren’t just maintaining a channel—we are protecting coastal infrastructure, supporting the local tourism economy, and restoring vital habitats.”

But the state Division of Environmental Quality has to permit sediment placed on state beaches, and it requires that sand to meet standards. On federal lands, such as the Pea Island refuge and Cape Hatteras National Seashore, the U.S. Department of Interior also must permit the sand placement. Even when sand is removed from a nearby location, it’s not necessarily transferable to the beach where it’s needed.  Dredged sand may be the wrong color or size, or testing has revealed pollutants or toxins. It might be mucky and unsuitable for bird habitat. It might be too fine for the targeted location, meaning it would soon blow away. Or as happened in 2015 at North Topsail Beach, it could be too rocky.

Still, the Corps would continue to ensure that dredged material used as beach fill meets required standards, Pawlik said.

“The Flood and Coastal Storm Risk Reduction programs reduce risk for millions of Americans and billions of dollars of infrastructure,” he wrote. “(The initiative) will ensure USACE pursues cost efficiency through better use and scheduling of dredging assets nationally and increased use of dredged materials for beneficial use.”

Pawlik said that the Corps’ district commanders would review all projects and be “key players” in forward motion of projects and allocation of resources “to prioritize the most pressing infrastructure needs across the country.”

Each of the 12 memorandums provides details of different aspects of implementation of the “Building Infrastructure, Not Paperwork” program, addressing what many people have frequently noted about the agency.

As one excerpt from the memo, “Prioritization of Efforts Within the Army Civil Works Program” reveals, there’s room for improvement: “In recent years, the Corps has prioritized every effort all at once, which of course means there are no priorities and that we can mask lack of delivery with progress on paper.”

Coastal Review will not publish Friday as our offices will be closed in observance of Good Friday.

Ocean Isle Beach hopes to pump tens of thousands of cubic yards of sand onto the beach at the easternmost tip of the island by this spring as an erosion stopgap.

The Brunswick County town has asked the Army Corps of Engineers Wilmington District for authorization to have up to 70,000 cubic yards of sand placed east of its terminal groin where erosion has been chipping away at the shoreline in front of a luxury neighborhood.

The Corps announced late last week that it is accepting public comments through March 8 on the town’s application to modify the federal permit it received in 2016 to build the terminal groin at Shallotte Inlet. 

As it stands, that permit does not allow sand to be placed east of the terminal groin.

A terminal groin is a wall-like structure built perpendicular to the shore at inlets to contain sand in areas with high rates of erosion.

Proposed modifications to the permit include placing sand along an 1,875-foot stretch of shoreline at The Pointe, a gated community whose oceanfront property owners have been desperately trying to hold back an encroaching sea.

Under the terms of the proposed permit changes, this would be a one-time beach nourishment project.

The town is also asking for its permitted sand borrow source in Shallotte Inlet to be expanded from about 83 acres to a little more than 117 acres, to add a new borrow area within the Atlantic Intracoastal Waterway and be allowed to work outside of the environmental window for dredging from April 30 to June 15.

Ocean Isle Beach Town Manager Justin Whiteside said on Tuesday that the town wants to get the modified permit as quickly as possible in hopes that the sand placement project would coincide with a federal dredging project.

The Corps announced last September it had awarded a nearly $8.5 million contract to maintenance dredge several areas along the Intracoastal, including at the Shallotte Inlet crossing.

Whiteside explained that Ocean Isle Beach anticipates receiving 25,000 cubic yards of sand “that the town is paying for” from the Corps through the inlet crossing project.

“The hope is to get this permit modified within the timeframe that the Corps’ contractor is here on site and then we could contract with them possibly to dredge more in that federal channel or go into that inlet borrow area to put that additional sand there,” he said.

Whiteside said the town does not yet have an approximate cost of its proposal to nourish the beach east of the terminal groin.

Ocean Isle’s east end had for decades been losing ground to chronic erosion, the worst of which occurred along about a mile of ocean shoreline beginning near the inlet.

An encroaching ocean claimed homes, damaged and destroyed public utilities and prompted the North Carolina Department of Transportation to abandon state-maintained streets there.

To stave off further erosion, the town in 2005 was permitted to install a wall of sandbags to protect public roads and infrastructure from getting swallowed up by the sea.

In 2011, Ocean Isle Beach was, along with a handful of other beach communities, allowed to pursue the option of installing a terminal groin at an inlet area after the North Carolina General Assembly repealed a law that banned hardened erosion control structures on the state’s ocean shorelines.

Five years later, the town received state and federal approval to build a 750-foot terminal groin.

But before construction could begin, the Southern Environmental Law Center in August 2017 filed a lawsuit on behalf of the National Audubon Society challenging the Corps’ approval of the project.

More than three years passed before the lawsuit, which later included the town, concluded after an appellate court affirmed a lower court’s decision that the Corps fairly considered the alternatives included in an environmental impact statement examining the proposed project.

Construction of the $11 million project was completed in the spring of 2022, the same year the final plan for The Pointe, a 44-lot subdivision, was approved for development.

By fall 2025, The Pointe’s oceanfront properties were suffering significant erosion.

Last November, the North Carolina Coastal Resources Commission unanimously agreed to grant permission to the owners of eight lots in that neighborhood to install larger than typically allowed sandbag structures waterward of their land.

Whiteside said Tuesday that those sandbags had not been installed.

Sand in the area east of the terminal groin, he said, appears to be “recovering a little bit.”

“We think over the past month and a half or so that we’ve gained, just looking at aerial photographs, approximately 5,000 cubic yards of sand that’s deposited east of the groin, so some of the beach is building back up in that area,” Whiteside said.

He explained that in 2022 the town’s federal beach nourishment project took place in conjunction with the construction of the terminal groin.

“The dredger came through and we had a huge spit on the east end of the island and that contractor came through and just dredged right through that spit and took it down to a negative 15-foot elevation,” Whitesaid said. “It’s kind of filled back in now and we’re thinking that’s why we’re seeing the growth back east of the groin. We’re hoping this shows that that’s some of what contributed to it, that it was maybe our own nourishment project through the Corps.”

“But, in the meantime, we know this is a short-term solution that we’ve got to figure out some type of long-term solution to, so our engineer firm is going to be doing some modeling to see what kind of modifications, if any, need to take place to the existing groin,” he continued.

Comments on the proposed project should refer the permit application number (SAW-2011-01241) and may be submitted to the Corps electronically through the Regulatory Request System at https://rrs.usace.army.mil/rrs or by email to Tyler Crumbley at tyler.a.crumbley2@usace.army.mil. 

Written comments may be mailed to Commander, U.S. Army Corps of Engineers, Wilmington District, Attention: Tyler Crumbley, 69 Darlington Ave., Wilmington, NC  28403.

The Corps will consider written requests for a public hearing to be held to consider the proposed application modifications.

This report first appeared Feb. 3 in NC Newsline.

North Carolina Insurance Commissioner Mike Causey says even as snow from last weekend’s storm begins to melt, his office has received a flurry of calls from business owners and lifetime Outer Banks residents upset to see more homes falling into the Atlantic Ocean.

The powerful storm, packing winds of 60 mph, brought down four more unoccupied structures in Buxton.

“There’s some angry people out there,” Causey told members of the Council of State on Tuesday. “That makes a total of 31 homes that have collapsed since 2020.”

Related: Winter storm takes 4 Buxton houses, leaves inches of snow

Causey said while his office doesn’t have a solution to deal with the continually eroding shoreline, the state should listen to the locals.

“The complaint that I hear is there’s been too much finger-pointing with the multiple agencies involved, the federal government, the parks system, environmental groups, on down the list,” said Causey. “But what they’re telling me is that we need emergency help to stop the bleeding, because we can’t let these houses keep collapsing.”

Buxton typically loses six feet to eight feet of shoreline each year, but rising sea levels and an active storm season can accelerate that erosion. And a collapsed home can leave a debris field that stretches for miles.

“It is an economic nightmare and it’s an environmental nightmare when that happens,” said Causey.

Property owners are responsible for removing debris when a home collapses, but currents can spread the wreckage far down the coast, so responsibility has increasingly fallen on park officials to protect the shoreline.

Last year the Cape Hatteras National Seashore hauled out over 400 truckloads of debris from fallen houses.

Causey said the residents he’s spoken to this week want to see manmade reefs or hardened structures, which are currently banned, reconsidered. Beach renourishment, which has been used in other coastal communities, is an expensive and temporary solution.

This is not the first time Causey has pressed for help for Outer Banks homeowners.

Last November, Causey and Gov. Josh Stein urged Congress to pass the Preventing Environmental Hazards Act of 2025. The bipartisan bill would allow National Flood Insurance Program (NFIP) payments to be made before an imminent collapse caused by erosion.

Standard homeowners’ insurance doesn’t cover shoreline erosion damage, so property owners can’t collect on it, even if the property is condemned, until the house collapses. The proposed legislation would give homeowners financial help to demolish or relocate a condemned structure before it falls into the surf.

“Federal NFIP pre-collapse authority would reduce hazards, protect visitors and wildlife, and save taxpayer dollars on emergency response and cleanup,” Causey and Stein wrote in their Nov. 2025 letter.

But the bill, co-sponsored by U.S. Rep. Greg Murphy (R-NC3), has not moved since last May, when it was referred to the House Committee on Financial Services.

“I think those people deserve to be heard,” said Causey.

While Causey was focused on the coast at Tuesday’s Council of State, Stein turned his attention to disaster recovery out west.

The governor’s office continues to push for Congress to authorize $13.5 billion requested for Hurricane Helene relief, Stein told the council. While North Carolina’s congressional delegation is supportive, the wheels of the federal government move very slowly, tied up in red tape due to new FEMA review requirements.

North Carolina has only received about 12% of the federal aid it has requested for Helene recovery, Stein said.

“I’m so glad I’m not in Congress because I can only imagine trying to get anything constructive done in that body,” said Stein. “But we need their help, Western North Carolina needs their help, and we’re going to keep asking for their help.”

For now, Stein said he’s incredibly grateful for the state employees who helped North Carolinians weather back-to-back winter storms in January.

Transportation crews pre-treated state roads with over 10 million gallons of brine, Stein said. Over 100,000 tons of salt was spread across North Carolina’s 100 counties, with another 20,000 tons expected to be needed in the next day or two with more wintry weather in the forecast.

“They’re just working nonstop to try to minimize the impact on our lives,” said Stein.

NC Newsline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. NC Newsline maintains editorial independence.

The Army Corps of Engineers wants more time to mull over concerns that have been brought up on the proposed project to deepen and widen portions of the Wilmington Harbor channel.

The North Carolina Division of Coastal Management announced late Tuesday afternoon it had granted the Corps’ request, indefinitely pausing the division’s review of whether the proposed project is consistent with state coastal management program laws, regulations and policies.

“The decision to pause allows time for the Corps to review and consider issues raised by DCM and the public before DCM completes its review,” according to a release. “A timeline has not been established for when the pause may be lifted.”

The pause follows a series of deadline extensions that have been made in recent weeks on the proposed project, one that is being highly scrutinized for its potential effects to the environment, shorelines and treasure of historic and culturally significant areas along the shores of the lower Cape Fear River.

The N.C. State Ports Authority says the project designed to accommodate larger ships would attract more import and export business to the port, ease shipping congestion on the East Coast, and keep the state’s ports competitive. The proposal calls for deepening the harbor channel by 5 feet and widening portions of it from the mouth of the Cape Fear River to the Wilmington port.

In late December, the division announced that the Corps’ Wilmington District was giving the division more time to complete its review of the federal determination, pushing its deadline from Jan. 5 to Jan. 19.

The Corps requested the pause on Jan. 16, just days after state fisheries and wildlife resources officials sent the division memorandums saying those agencies continue to have concerns about impacts to fish and wildlife resources within the proposed project area.

A Corps spokesperson did not respond to a request for comment by deadline for this report.

In its Jan. 14 memorandum to the Division of Coastal Management, the N.C. Division of Marine Fisheries reiterated its concerns about the proposed project’s effects on habitat essential to fish in the river, wetlands connected to the river, and the overall water quality in the river.

Deepening and widening the harbor as planned “will have significant adverse impacts to fisheries resources due to the permanent loss of state-designated nursery and anadromous fish spawning areas along the Cape Fear River estuary and its tributaries,” the memorandum states.

“There is also potential for significant adverse impacts to wetlands, (submerged aquatic vegetation), shellfish resources, and water column habitat due to insufficient mitigation plans and uncertain impacts associated with the proposed actions that are not adequately discussed,” in the federal letter report and draft environmental impact statement of the Wilmington Harbor 403 navigation project released in September. The figure 403 refers to the relevant section of the Water Resources Development Act.

N.C. Wildlife Resources Commission officials raised similar worries, stating in a Jan. 15 memorandum to DCM that while it had been involved throughout the project’s development process, “our agency still has concerns regarding impacts the proposal will have on wildlife resources in the project area.”

“These comments include concerns regarding the proposal’s direct impacts to wildlife habitats, whether impacts to these habitats have been adequately assessed, inadequacies of mitigation proposals, the need to consult appropriate agencies prior to moving forward with the proposal, and the subsequent impacts to wildlife and their habitats (particularly nesting waterbirds and shorelines) from larger and increased vessel use.”

A number of towns in Brunswick and New Hanover counties have adopted resolutions urging state and federal agencies to protect a series of islands within the lower Cape Fear River that support 30% of the state’s coastal shorebird population.

Those towns are also calling for the creation of a comprehensive, long-term, and fully funded environmental and adaptive management plan to cover costs related to monitoring and mitigation to prevent and repair environmental harm.

A Corps official earlier this month confirmed to Coastal Review that the agency was implementing a programmatic agreement with the North Carolina State Historic Preservation Office, the General Services Administration, the state Ports Authority, “and possibly the Advisory Council on Historic Preservation” to review historic and culturally significant areas along the river that may be impacted by the proposed project.

The agreement must be signed before the agency finalizes project plans, which would occur after the Corps releases its final environmental impact statement.

The final environmental impact statement is expected to be released sometime this summer, according to a tentative timeline released by the Corps. It is unclear how the Corps’ request of the state to pause its review may affect that projected timeline.

Once the review process resumes, DCM must decide whether to concur with or object the Corps’ determination.

“If DCM objects, it can offer alternatives or conditions that, if agreed to by the Corps, would allow the project to proceed,” according to the division.

Construction on the proposed project would begin no earlier than 2030 and take about six years to complete, a schedule Corps officials have said is optimistic.

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.

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.”

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.

OCEAN ISLE BEACH — When the Army Corps of Engineers issued its final decision on the terminal groin project here more than eight years ago, the document conveyed a prescient warning.

A terminal groin “may increase erosion along the easternmost point of Ocean Isle Beach, down-drift of the structure.”

Today, the shoreline east of terminal groin is being gnawed away, vanishing beach in front of a neighborhood of grand, multimillion-dollar homes built shortly after the $11 million erosion-control structure was completed in spring 2022.

A wall of sandbags fends off waves from reaching some of the waterfront homes on the ocean side of the gated community that’s advertised as “luxurious coastal living.”

Several lots remain vacant because the properties no longer have enough beachfront necessary to meet the state’s ocean setback requirements.

“I would have never developed the property if I had known this was going to happen,” said Doc Dunlap, a developer with Pointe OIB, LLC. “It’s just devastating to tell you the truth. I even had plans myself to build there, have a summer home.”

The caveat written in the federal record of decision all those years ago, one that was a central argument in a lawsuit to try and stop the terminal groin from being built, was not explicitly pointed out to the developers of The Pointe, they say.

In an email responding to Coastal Review’s questions, the Division of Coastal Management said it, “is not aware of any specific notification to those property owners other than the standard (area of environmental concern) hazard notice.”

“We were just under the impression that all of this was going to be extremely positive and help protect this part of the beach,” said Jimmy Bell, who contributed to the planning and implementation of the community. “And then, once we started experiencing this massive erosion, I started researching groins more. We had engineers and other people that were helping, and we were informed and under the impression that it was going to all be good, and now it’s turning out to not be quite as good.”

Ocean Isle Beach Mayor Debbie Smith pushed back on those claims.

“My heart breaks for them, but the developers knew that that groin was going in,” she said. “They knew it was not designed to protect that area. It was not designed to harm it, but they also know that adjacent 2,000 feet west of them was a line of sandbags and most of them had been there for years.”

The developers are now seeking legal representation as they continue to try to figure out how to protect the oceanfront properties within the 44-lot neighborhood.

“Mr. Dunlap is extremely disappointed in the decisions made that resulted in the placement and construction of the terminal groin and the erosion damages it has caused,” John Hilton III, corporate counsel to Pointe OIB, stated in an email. “He is committed to holding those who made these decisions legally accountable and also seeking a remedy to correct the ongoing erosion.  We are working to obtain local legal counsel to explore and pursue all available options.”

Erosion-battered shore

The east end of the island at Shallotte Inlet historically accreted and eroded naturally as the inlet wagged back and forth between Ocean Isle Beach and Holden Beach up until Hurricane Hazel hit in 1954.

When the powerful hurricane – likely a Category 4 storm using the Saffir-Simpson scale developed in 1971 – made landfall in October 1954 near the South Carolina border, it caused the inlet channel to move in a more easterly direction, accelerating erosion at the east end of the barrier island.

Erosion has remained persistent in that area since the 1970s, according to N.C. Division of Coastal Management records.

The worst of the erosion occurred along about a mile of oceanfront shore beginning near the inlet. An encroaching ocean claimed homes, damaged and destroyed public utilities, and prompted the N.C. Department of Transportation to abandon state-maintained streets.

In 2005, the town was permitted to install at the east a wall of sandbags to barricade private properties and infrastructure from ocean waves.

Sandbags revetments are, under state rules, to be used as a temporary measure to hold erosion at bay.

In 2011, the North Carolina General Assembly repealed a decades-old state law that prohibited permanent, hardened erosion-control structures from being built on North Carolina beaches.

Under the revised law, a handful of beach communities, including Ocean Isle Beach, get the option to pursue installing a terminal groin at an inlet area.

Terminal groins are wall-like structures built perpendicular to the shore at inlets to contain sand in areas of high erosion like the east end of Ocean Isle Beach.

These structures are controversial because they capture sand that travels down the beach near shore, depleting the sand supply to the beach immediately downdrift of the structure, stripping land that is natural habitat for, among others, sea turtles and shorebirds.

Ocean Isle Beach Sea Turtle Protection Organization Island Coordinator Deb Allen said that beach conditions east of the terminal groin have hindered turtles from nesting there this season. Escarpment, sandbags and debris that Allen believes is coming from the development have impeded turtles from accessing the sandy areas they seek to lay their eggs.

As of early September, the organization had recorded four false crawls, which is when a female turtle crawls onto a beach only to return to the ocean without laying eggs, and three nests east of the terminal groin, Allen said.

The potential for that type of impact to wildlife was argued in a lawsuit the Southern Environmental Law Center filed on behalf of the National Audubon Society in August 2017 challenging the Corps’ approval of Ocean Isle Beach’s project.

The lawsuit claimed that the Corps failed to objectively evaluate alternatives to the terminal groin, including those that would be less costly to Ocean Isle residents and less destructive to the coast, particularly to what was then the undeveloped area on the island’s east end.

The lawsuit, which later included the town, came to an end in March 2021 after a panel of appellate court judges affirmed a lower court’s decision that the Corps fairly considered the alternatives included in an environmental impact statement, or EIS, examining the proposed project.

“As we went through and talked about the impacts of terminal groins in the EIS, this was the central argument – will the land east of the groin erode at a more rapid pace? And, everything we could point to, all of the science, said yes,” said Geoff Gisler, program director of SELC’s Chapel Hill office. “There’s only so much sand and the way that these structures operate is they keep more of it in one place and necessarily take it from somewhere else. That’s why we have seen over and over again that when you build a groin towards the end of an island, what happens is the island erodes at the end. That there is less sand going to the east end is not an accident.”

‘Righting this wrong’

Gisler said the SELC will be following how the town and the Corps respond to the erosion that is occurring east of the terminal groin.

“The town committed and the Corps committed to righting this wrong if it occurred and that’s what we’ll be looking at,” he said.

Under conditions in the town’s federal permit, the town is required to monitor the sand spit east of The Pointe as well as the town’s shoreline and that of neighboring Holden Beach to the west.

Should those shorelines erode past boundaries identified in 1999, “consideration will be given to modifying the structure to allow more sediment to move from west to east past the structure,” according to final EIS.

The town also has the option to nourish an eroded shoreline.

“In the event the negative impacts of the terminal groin cannot be mitigated with beach nourishment or possible modifications to the design of the terminal groin, the terminal groin would be removed,” the EIS states.

The Corps and the Division of Coastal Management are reviewing the monitoring report submitted by the engineering firm hired by the town, Coastal Protection Engineering of North Carolina.

That report indicates that erosion “has exceeded the 1999 shoreline threshold for the area immediately east of the groin.”

“However, the applicant is working on a modification request to alter this threshold as the shoreline had eroded landward of part of that threshold prior to construction of the groin,” according to the division.

A beach maintenance project scheduled for fall 2026 to inject sand west of the terminal groin is anticipated to increase the rate of sand that bypasses the terminal groin and “would serve to ‘feed’ the shoreline immediately east of the groin with additional material,” according to the town’s engineer.

But The Pointe’s developers and property owners say they can’t wait another year.

“There’s got to be an exception to the standard application restrictions (i.e., sandbag placement and height) the (Coastal Area Management Act/Coastal Resources Commission) process has today to protect near term east of the groin due to emergency status and a path longer term that can get us to a point of evaluating what we can do for the groin from a redesign standpoint that would protect all both west and east of the groin,” property owner Brendan Flynn said. “What we’re dealing with now in my view is we need to have another review of what could be done to enhance the groin’s performance to benefit and protect the other part of this island.”

Smith said that the terminal groin is doing what it was designed to do.

“It is building up right adjacent to the groin,” she said. “It just has not built anything far enough down to protect this new development. I wish Mother Nature would reserve herself and build it up right now instead of taking it away. I wish I had some magic bullet for them too, but I don’t today. It’s really up to them to take some action.”

Kerri Allen, director of the North Carolina Coastal Federation’s southeast office in Wrightsville Beach, called the situation “heartbreaking,” but not surprising. The Coastal Federation publishes Coastal Review.

“When you alter the natural movement of sand with a hardened structure like the terminal groin, you might protect one stretch of beach, but you inevitably put other areas at greater risk,” she said. “And, unfortunately, the erosion we’re seeing east of the groin is exactly what experts warn could happen.  That being said, the purpose of this groin was to protect existing infrastructure that was already at risk. Instead, new homes were built in an area that’s incredibly vulnerable and these homeowners are now facing devastating losses. Moving forward, we need to focus on solutions that don’t just shift the problem from one place to another and ensure that public resources aren’t used to subsidize these risky, short-term development decisions.”

“I think this is a pivotal moment for Ocean Isle and for other coastal towns,” she continued. “We have an opportunity to step back, look at the science, and commit to managing our coast in a way that protects both our communities and the natural systems that sustain them. That means resisting the temptation to build our way out of these challenges because, ultimately, the ocean always wins.”

The Environmental Management Commission voted unanimously Thursday to send a rule outlining health-based standards for three per- and polyfluoroalkyl substances to the state Rules Review Commission.

The 15-member commission also wrapped up the rulemaking process to “clarify” the definition of wetlands, as directed by a summer 2023 session law. The draft language now heads to the Office of Administrative Hearings. Per the session law, the rule is exempt from the Rules Review Commission.

During the environmental commission’s meeting held in Raleigh and streamed virtually, members voted on the draft rule that specifically targets PFOA, PFOS, and GenX in groundwater, which supports about half of drinking water in North Carolina.

Under the rule that is now expected to go before the rules commission at its Oct. 30 meeting, permitted releases of PFAS to groundwater will be limited. The rule also establishes goals for cleaning contamination in groundwater and ensures residents whose drinking water exceeds contamination limits receive alternative water supplies.

Comments the N.C. Department of Environmental Quality received on the rule through a public comment period late last year overwhelmingly supported the rule, but, as Commissioner Dr. Jackie MacDonald Gibson noted Thursday, the public also raised concerns that the rule did not set standards for additional PFAS.

“It’s a very emotional issue,” Gibson said. “I went to the (public) hearing in Wilmington and people there, their families have been directly affected by PFAS exposure to the point that some people were afraid to have their kids drink water at school. I think a lot of people are going to be glad that we’re moving forward with this. They’re going to wish we were doing more.”

The environmental commission’s groundwater and waste management committee last year voted to omit five of the eight compounds DEQ staff originally presented to be included in the rule.

The committee chose to focus on PFOS and PFOA, which the U.S. Environmental Protection Agency classifies as likely carcinogens, and GenX, a compound specific to Chemours.

Commissioner Tim Baumgartner, who chairs the groundwater and waste management committee, explained that the compounds that were omitted – PFBS, PFNA, PFHxS, PFBA and PFHxA – are being regulated at the practical quantitation limit, or PQL.

PQL is considered the base line in testing laboratories.

“It’s not that we’re not regulating PFAS. It is a matter of what the quantitative limit is for remediation, or what the target level is,” he said.

Commissioner Robin Smith said she regretted that the commission did not adopt health-based standards for all eight PFAS as initially presented by DEQ.

“It would have actually helped some land owners and some responsible parties who need to clean up groundwater by providing them with a health-based standard that is above the PQL,” Smith said. “I’m going to vote for these. I think this is a good rule, but to me, I can’t follow the reasoning of dropping the other five when, in fact those would have made the rules less stringent, but still would have maintained a health-based standard for those other five.”

Environmental Commission Chair JD Solomon responded, saying that instead of using a health-based equation, one that is subject to change, for the compounds that were omitted, the commission “defaulted to PQL.”

“Keep as much PFAS out of the water as possible,” he said. “So, while PFAS is being debated at the national level, and whatever level, we decided as a body to keep it as stringent as possible, even for cleanups.”

If approved by the rules commission next month, the rule would become effective Nov. 1.

A proposed draft rule requiring monitoring and development of PFAS minimization initiatives for dischargers into surface water will be on the commission’s water quality committee’s agenda in November.

Members of that committee voted 4-2 Wednesday to include the draft rule on their meeting scheduled Nov. 12. The proposed rule would require industries that directly discharge compounds into surface water and all significant industrial users that discharge to publicly owned treatment works to monitor their releases of PFOA, PFOS and GenX.

If the committee approves the rule, it will go to the full commission for consideration Nov. 13.

During staff comments, the commissioners were informed that DEQ is now requiring Chemours to expand the number of private wells eligible for PFAS contamination sampling to about 14,000 additional residences in New Hanover, Brunswick, Columbus and Pender counties.

Related: DEQ requires Chemours to expand PFAS well water testing

The expanded area was identified through additional data analysis conducted by the state and Chemours. Chemours’ Fayetteville Works plant in Bladen County discharged PFAS, including GenX, for decades directly into the Cape Fear River, ground and air.

Wetlands definition rule

The General Assembly with a June 27, 2023, session law directed the commission to adopt a rule consistent with language in the statute that read “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” federal regulations.

Sue Homewood with the Division of Water Resources explained Thursday to the commission that, “We had the session law in 2023, the EMC requested that we move forward with this rule amendment, even though we were implementing the rule and are implementing the session law already.”

Around the same time this session law was drafted and making its way through the state legislature, the U.S. Supreme Court ruled in favor of an Idaho couple, the Sacketts, who sued the Environmental Protection Agency for putting a stop on work to backfill what the federal agency argued was wetlands.

The Sackett v. EPA decision on May 25, 2023, changed the definition of “waters of the United States,” which are navigable waters protected under the Clean Water Act. The definition now excludes noncontiguous wetlands, or those not connected to navigable waters. The EPA aligned its definition with the court case effective Sept. 8, 2023.

When the North Carolina General Assembly put the 2023 session law through that summer, commissioners worked with staff on how best to proceed. The matter was on pause between April 2024 to January of this year, when the water quality committee approved the language to go to the full commission. Members approved in March the proposed text rule and moving ahead to public comment, which was open April 15 to June 30. A public hearing was held June 26.

Homewood said 134 written comments were submitted and 13 oral comments were presented at the hearing, which are in summarized in the hearing officer’s report.

Of all the comments, she continued, only one was in favor of the rule amendment.

“In general, the comments opposed to the rule amendment were concerned about loss of wetland protection in North Carolina,” Homewood said, such as what the rule means for flooding, resiliency and wildlife habitat.

The public also commented that the state is investing in mitigation and flood resiliency that these wetlands could help provide, and there were some comments stating that the General Assembly should not dictate a rule making body on how to implement rules.

The wetlands definition rule was approved with 10 voting for the rule and commissioners Smith, Gibson, Dr. Jennifer Orme-Zavaleta, Dr. Ann Chelminski and Dr. Ilona Jaspers voting against. In a separate vote, the hearing officer’s report passed 13-1, with Orme-Zavaleta voting against no and Gibson abstaining.

Homewood said the next step is to submit the rule to the state’s Office of Administrative Hearings, then to General Assembly, which would be the 2026 session. After that, it needs to be approved by the EPA, because this definition is part of the state’s water quality standards.

Karen Higgins with the water planning section said that the EPA has 60 days to approve, 90 days to disapprove, or nothing happens if they take longer. If the EPA disapproves of the standards change, the agency sends it back to the state.

Solomon said he had been asked what could be done about the rule and the bottom line is “our rules have got to be consistent with state laws. And so while this is a little unusual to say, they did their action, we have to clean up our rules now to make sure the definitions fit.”

He continued by pointing out that the rulemaking process “is more or less procedural” and there are concerns but the commission has to comply with the state laws.

Baumgartner reiterated that it was a statutory directive from the General Assembly and the commission is following the Administrative Procedures Act by making this rule change, which Commissioner Kevin Tweedy acknowledged, but said he’s hoping that the state can disconnect from the federal definition.

“North Carolina has unique resources that I think a lot of people, obviously, from the comments, agree it should be protected. I think we can do that protection in a smart way that that takes into account everybody’s concerns and issues with wetlands. But I think connecting it to the (federal definition) and keeping it that way is just not a good long-term policy,” Tweedy said.

Smith, a longtime attorney, called this “bad policy” and part of the reason is that nothing at the federal level is about which or whether these wetlands are important for ecological or other purposes.

“The only issue at the federal level is federal jurisdiction, and that’s driven by the Commerce Clause of the United States Constitution, and it’s driven by the language of the Clean Water Act,” Smith said. “It’s a jurisdictional issue at the federal level. It has nothing to do with assessment of the value of these wetlands.”

Managing the wetlands is primarily a state responsibility, which is why “it’s a mistake to tie state decisions about the value and protection of wetlands to a federal jurisdictional issue,” Smith said.

Aside from bad policy, she said, it’s bad legislative practice, because there’s a section in the session law that causes the entire session law language to sunset as soon as this rule is adopted.

“What the legislature did not change,” Smith said, is the existing definition of waters of the state in a statute, which will continue to be in effect after the session law expires.

She reiterated a point Solomon made that the commission’s rules cannot be in conflict with state law. “But unfortunately, what the legislature has given us is a situation that will create a conflict with state law.”

Smith voted against approving the rule, saying that she understands “the realities of situation, but between the policy and the legislative process and the, in my view, misuse of the session law in this way, without clarifying a statute, makes this an easy vote against for me.”

JACKSONVILLE – When the proposed flood insurance rate maps for Onslow County were released back in 2016, Jacksonville officials were surprised to say the least.

The preliminary maps created under North Carolina’s Flood Plain Mapping Program shifted more than 800 additional structures in downtown Jacksonville into a high-hazard flood zone.

“Jacksonville had the highest number percentage-wise increase of anywhere in the state,” said Ryan King, the city’s director of planning and inspections. “That was an eye opener for us because, if you look at it, we don’t have a lot of areas that flood. We don’t have a lot of structures that flood. Now, we have some, don’t get me wrong, but we don’t have a lot.”

King spoke with Coastal Review last week during an open house the city hosted for residents and business leaders to review and discuss proposed updated flood studies and revisions to the maps that have been made following the city’s appeal.

Special flood hazard areas, or SFHAs, are identified as areas with a 1% or higher annual risk of a flood. Unlike moderate to low-risk areas, where flood insurance is recommended, but optional, flood insurance and federally backed mortgages are required in high-risk zones.

Jane Sutton and her husband have opted against buying flood insurance, telling Coastal Review that their property, two blocks from the New River, does not have a history of flooding.

“I can tell you as long as I’ve lived here and as many hurricanes as I’ve lived through our neighborhood has never flooded,” Sutton said.

The couple were among the first area residents who trickled into the open house last Wednesday. They were relieved to learn their property will not be affected under the proposed revised maps.

Under the 2016 preliminary maps, which were largely based on storm surge modeling, many downtown homes would have to have been elevated, some as much as 10 feet. That would be on top of the city’s 3-foot freeboard requirement above base flood elevation.

“In the downtown area, which is an area that jumped out at me, you went to an elevation of 10,” King said. “I think that area should be in a flood zone because the houses do flood. But I think the number seemed off at 10 feet.”

There were other things that raised city staff’s concerns. Some properties in Carolina Forest, a residential neighborhood of townhomes and single-family homes roughly 5 miles from downtown, were included in a flood zone based on data from 2000, King said.

Construction of that neighborhood didn’t get underway until after that year.

After city staff shared their concerns with Jacksonville City Council, the board agreed to hire design, engineering and consulting firm Applied Technology & Management Inc. to take a deep dive into some of the discrepancies being pointed out by staff.

The city formally appealed 33 blocks, or areas of land divided into smaller sections on flood maps, identified in the revised maps the Federal Emergency Management Agency released in 2016.

North Carolina received FEMA’s approval some two decades ago to take over the state’s Flood Plain Mapping Program, a move supported by those who believed map updates are best handled at the local level by people who are familiar with the areas under review.

Revised preliminary maps were released in late March 2024.

The maps incorporate newer data, including information gathered using LiDAR, or Light Detection and Ranging, which uses laser light to measure distances and create detailed models of the environment.

The proposed revised maps do not, however, factor in sea level rise.

“And we know, from what I’ve been told, the next revision will incorporate sea level rise so we want to make sure that we get it right this time because I think it’s just going to stack on top of it as we move forward. So, this is almost like the new baseline,” he said.

Beginning Sept. 18, property owners will have 90 days to appeal the 2024 revisions. That appeal period closes on Dec. 18.

King encourages Jacksonville property owners to contact their insurance agents to inquire about flood policies.

“It’s worth reaching out to find out to protect your property, but that’s a conversation the homeowner needs to have with the insurance company,” he said.

MOREHEAD CITY – Keep telling your story.

That was the message to those who attended the first meeting of the North Carolina Coastal Counties Fisheries Coalition held Tuesday afternoon in the Crystal Coast Civic Center.

Dare County Board of Commissioners Chairman Bob Woodard, who initiated the coalition to be a voice for the commercial fishing industry, welcomed elected officials and staff from Beaufort, Camden, Carteret, Chowan, Craven, Currituck, Dare, Hertford, Hyde, Onslow, Pamlico, Pasquotank, Perquimans, Tyrrell and Washington counties, and 10 coastal legislators or their representative.

“We’ve got a lot of folks here today concerned about this coalition, and this effort,” Woodard said, adding that many of the more than 100 in the audience were in Raleigh to protest House Bill 442.

But the head of the state’s recreational fishing association called the group’s goals “disappointing.”

‘No due process’

First introduced in March to open up the recreational season for flounder and red snapper, the Senate amended the bill in mid-June to include a trawling ban in the state’s inland waters and within a half-mile of the shoreline.

The proposed ban was met with both outcry and support, but when the Senate kicked the amended bill back to the House, representatives chose not to advance the bill. Since June 25, the bill has been parked in a House committee.

Woodard set the coalition in motion July 3 with a letter to the 18 other coastal counties that border bodies of water from which licensed commercial fishermen are required to report their catch, representing 20% of the state’s counties, he explained.

“That should send a clear voice to our legislators, that we got 20% of the entire counties in the state of North Carolina, and hopefully we will grow up more for people that believe in eating the fresh local seafood from clean, clear waters in our state, rather than foreign food that comes into our country. I don’t know about you, but I want to eat fresh, seafood,” he said.

When Woodard began the meeting Tuesday, he told the crowd that he was “appalled to see that (proposed trawling ban) went to the House,” and wrote a letter June 30 to Senate Leader Phil Berger.

Woodard read the second paragraph of that letter aloud: “Our democratic system, established by our forefathers, was designed to ensure that every voice in leadership could be heard-whether in support or opposition. At its core, our Constitution is built on mutual respect and, most importantly, due process.”

Woodard said, “everyone in this room sitting here today certainly knows there was no due process,” and then explained how he pitched the idea to form the coalition to a fellow commissioner.

“I said, ‘Enough is enough.’ I’ve been a chairman in Dare County for the last 10 years. I’ve been on the board the last 12 years,” Woodard said. “Every single year, we have to fight the regulatory agencies. We have to fight the leadership.”

It was time “to come together, not just counties, not just fishermen, but stakeholders all over the south and this entire state. We need to educate those legislators that aren’t living on the coast.”

Once given the board’s blessing, Woodard sent the letter proposing the North Carolina Coastal Counties Fisheries Coalition.

“The goal of this coalition is to bring together county leaders from coastal regions to address these critical issues with a unified voice. By coordinating our efforts, we can better advocate for the long-term health and sustainability of our fisheries, our local economies and our fishermen’s way of life,” Woodard said.

About the coalition

Members agreed that the coalition would be a public body and have its next meeting at 1 p.m. Sept. 16 in the civic center, ahead of when the legislature is expected to convene.

After that, the coalition will meet quarterly in Carteret County because of its central location.

Woodard emphasized he wanted the coalition to be “as transparent as humanly possible,” adding he wanted the “public to be here.”

The coalition adopted a mission statement to support commercial fishermen and fishing communities, protect their livelihoods, preserve coastal heritage, “and safeguard the economic vitality of our working waterfronts. Together, we work to ensure the continued harvest of high-quality North Carolina seafood—feeding families, strengthening communities, and ensuring North Carolina Catch remains a priority for consumers to enjoy throughout our state and beyond.”

During the discussion, Pamlico County Commissioner Candy Bohmert said that the coalition should focus on promoting — rather than stating it’s out to save — the commercial fishing industry.

“We don’t need to save these people. They save themselves. We need to empower them,” Bohmert said. “We really need to kind of change that language. We’re promoting them. We’re promoting our commercial history. We’re promoting all of that because they’re important.”

Bobby Outten, Dare County’s manager and attorney, is to serve as staff to the board.

Outten explained that the intention with the coalition is to act as a governmental body.

“The fisheries groups have for years been working hard to deal with fisheries issues, and what we found is the legislators aren’t listening, and it’s a hard road, and it’s a tough time,” Outten said.

The idea is to get the governmental entities of the affected counties together and “then be the voice for the political side of this,” Outten said.

Fisheries groups will still be the resource to disseminate the information, but the coalition will be “the voice of the political counties.”

From the legislators

There were nearly a dozen coastal legislators at the meeting, including Sen. Bobby Hanig, R-Currituck. Hanig has been a vocal opponent of the trawling ban since it was first proposed at a Senate committee meeting June 17.

“We’ve never had the opportunity to tell our story. Well, guess what God brought us? He brought us H442, and you know what that did? That wasn’t the shot heard around the world. That was the backfire heard around the world. Let me tell you why. Now we have the ability to be on the offense, and we have to keep that ability to be on the offense,” Hanig said.

That bill “is allowing us to tell our story,” he said, adding that it led to the coalition and got 700 people to Raleigh in about three days.

The turnout in Raleigh brought together various aspects of the industry, such as commercial fishermen, packing houses, “everybody. You know why? Because what’s the first thing they went after? The shrimp, right? They’re going after everything,” Hanig said. “Because that’s what they’re after, folks, they make no qualms about it. They’re after our industry.”

In response to an audience member asking who “they” are, Hanig said “Pick someone. The CCA, the Wildlife Federation, certain legislators, you know, their efforts. They’re after this industry. They make no bones about it. They’ve been telling the wrong story, the false story, for too long, and we haven’t stopped that.” The CCA is the Coastal Conservation Association North Carolina.

“I implore you, tell your story. Do not be afraid to tell your story,” Hanig said. “Let them know where you’re coming from, because those stories matter.”

Rep. Carson Smith, R-Pender, told the crowd that people in Raleigh think there’s no fish, no crabs, no shrimp, that “our fishery is completely depleted, because that’s what the Marine Fisheries Commission is telling them.”

He added that this message is what he feels pitted recreational against commercial fishing, and “they think that the shrimp trawl has killed all the fish.”

Smith suggested two resolutions: Ask the “General Assembly to completely redo the Marine Fisheries Commission,” and “tell the Wildlife Resources Commission, ‘hey, stay in your lane.’ You count the trout in the mountains, but don’t use state resources” to try to close the commercial fishing industry down.

Sen. Bob Brinson, R-Beaufort, said the best way to educate folks in Raleigh is by “getting them on your boats, getting them in your oyster beds, getting them in your fish houses, and showing them what it is you do and how you do it.”

Sen. Norm Sanderson, R-Carteret, explained that when the Senate voted on House Bill 442 June 19, four voted against, but 40-plus voted in favor, which he didn’t expect.

He later found out that the votes for the amendment were for the “environmental side because they claim that shrimp trawling was destroying the environment in our sound. That it was going to destroy all kinds of fishing. Well, that’s one of the talking points that the CCA has used for the last 20 years,” he said.

Sanderson said that he was also upset about how the bill was amended in the Senate, “because the process stunk to high heaven.”

He explained that he was co-chair in the Agriculture Committee when the amendment “first came about, and that is the last thing that you ever do to a committee chairman,” he said. “If you’ve got something that’s going to be contentious, if you’ve got something that’s going to cause a lot of outcry or pushback,” you should go to them before the meeting. But Sanderson said that’s not what happened in this case.

“Let’s stay strong. Keep helping us. Keep telling your story, spreading this message across and around this state, so that the next time this happens, there’ll be an outcry from all over this state,” he said.

Response from CCA-NC

Coastal Conservation Association-North Carolina Executive Director David Sneed told Coastal Review in an email that “it is disappointing to read the goal of this new coalition is apparently to create a vehicle only for ‘battling issues that affect the state’s commercial fishing industry’ (fewer than 2,000 people who profit from a public trust resource) rather than acting in the public interest for the 11 million citizens of North Carolina who own our public trust resources and would benefit enormously from a healthy, sustainable coastal fishery.”

The coalition would be better served by recognizing the foundational, bedrock principles established by the public trust doctrine and the state’s constitution. “That North Carolina’s coastal fisheries resources belong to all 11 million citizens of this State and must be managed, preserved, and protected for the overall benefit of those citizens and future generations.  In addition, the coalition’s approach only divides and disenfranchises the not-for-profit fishing public that lives in and visits our coastal counties,” Sneed continued.

“There are more than 91,000 Coastal Recreational Fishing Licenses sold across the state’s 19 coastal counties each year, and it is reliably estimated that more than 300,000 people spend nearly $1.5 billion annually across the three Congressional Districts that encompass these 19 coastal counties—people who not only live in our coastal counties but also people from inland counties who visit our coast and spend money supporting our coastal fishing communities,” he said. “Our hope would be that any efforts by this coalition will be focused on building a true coalition in the public interest—one that will support the sound management of our coastal fisheries resources to achieve the long-term sustainability that all North Carolinians deserve and are entitled to under the law.”

A proposal to strengthen and expand building rules in Leland’s flood zone will not be indefinitely sidelined, proponents of the changes say.

“I’m not going to let this die,” said Leland Councilmember Veronica Carter. “I will bring this up at every single meeting until we get some sort of ordinance.”

Carter, who also sits on the board of directors of the North Carolina Coastal Federation, which publishes Coastal Review, and fellow Councilmember Bill McHugh in telephone interviews last week expressed disappointment after a majority of the council on July 17 voted to table proposed updates to the town’s flood damage prevention ordinance.

Suggested amendments to the ordinance included extending building regulations to land within the 500-year flood zone, which includes nearly 280 acres, restricting residential construction fill to elevate property out of a flood zone, limiting density in a flood zone to two units per acre, and increasing freeboard, or the height added to base flood elevation, from 2 to 4 feet.

The town’s planning board unanimously supported the amendments, but the proposed changes were met with fierce pushback from pro-development groups, including builders and real estate agents.

The nonprofit Business Alliance for a Sound Economy in a letter reported in Port City Daily last month argued the proposed ordinance amendments would undermine property values, limit homeowners from making improvements to their houses, and impose “major new costs to home ownership in Leland” while doing “virtually nothing to reduce the impact of flooding.”

“Were one of them (houses) to be significantly or completely destroyed for any reason, the homeowner would be personally responsible for the major added expense of elevating the home to the new standard,” the letter states.

But building in a flood zone is in and of itself an inherent risk, one that is being exacerbated by the strings of coastal storms in recent years that have dumped historic levels of rainfall in the area, proponents of the measure say.

Next month will be the one-year anniversary of the unnamed storm that dumped up to 20 inches or so of rainfall in southern portions of New Hanover County down through Brunswick County over a two-day period.

That storm, widely called Potential Tropical Cyclone 8, surprised the area with flash flooding that washed out roads and inundated homes.

The National Weather Service said the storm approached an event expected to occur, on average, once every 1,000 years.

“It was ugly and if we’re seeing that kind of catastrophic event happening outside of a major hurricane, just some random summer day, I think we need to take a serious look at where and how we’re building and developing in this zone because, let’s not kid ourselves, the more impervious (surface) that you’re building, the more you push that water out,” McHugh said. “Not taking any action to mitigate that risk, to me, is just wildly irresponsible. The idea that these events are remote and rare and some sort of lottery occurrence is just disingenuous.”

As a result of the unnamed storm, areas outside of Leland’s flood zones were swamped, including Stoney Creek Plantation.

“We all know that the bottom line is things are flooding that have never flooded before,” Carter said. “Our flood maps from the federal government are woefully inadequate and outdated.”

Amendments proposed for the town’s flood prevention ordinance do not halt building in flood zones, she said.

“We’re just saying if you’re going to do it, you’re going to take into account it’s going to flood,” she said.

The coastal storm has been just one of a seemingly growing number of significant rain events hitting the state in recent years and exposing more and more flood-vulnerable areas.

Brunswick County officials are also taking notice. The county is commissioning a study on whether to create a stormwater utility. More than 28,000 structures are within the county’s flood zones.

Strengthening building rules within flood zones, McHugh said, is a moral issue, one where elected officials must ensure they are not creating a situation that puts everyone from property owners to emergency personnel in danger.

“When things flood, when things get damaged, the cost of everyone’s insurance goes up. So, if we limit development in danger zones we limit the risk in an area from hurricanes,” he said. “I remain hopeful that we’re going to pass some sort of meaningful change to flood zone development and I think that this is a matter of critical importance to public safety, to the safety of our first responders, to the insurability of the region, and to these folks who are making the largest investment of their lives, which are their homes. You should be able to trust that a home you buy in Leland is built somewhere safe.”

Both councilmembers said the town might benefit from hosting a workshop, one where residents and special interest groups may come together and share their suggestions.

The council is expected to discuss next steps on the proposed amendments during its Aug. 18 agenda meeting. The council’s regular meeting is scheduled Aug. 21.

Aligning North Carolina’s wetlands definition with that of the federal government’s would put the state’s waterways at risk, erase nature’s pollution filtration systems from the land, and increase flooding, speakers at a public hearing said.

More than a dozen people commented during the Thursday night hearing in Raleigh on the revised wetlands definition the North Carolina General Assembly enacted into law two years ago.

In accordance with the 2023 Farm Act, the state’s definition of wetlands must correspond with the federal government’s, which narrows the description of a wetland to having a continuous surface connection to Waters of the United States, or those protected under the Clean Water Act. The federal definition was changed to be consistent with a May 2023 Supreme Court ruling.

In North Carolina, that alignment equates to the loss of protections for an estimated 2.5 million acres of wetlands, according to the state Department of Environmental Quality.

That agency has been implementing the definition since its approval in June 2023, but the state-appointed Environmental Management Commission, which is responsible for adopting rules that protect, preserve and enhance air and water resources, must go through the rulemaking process to amend the state’s existing wetlands definition.

The law legislators enacted two years ago explicitly directs that the Rules Review Commission cannot challenge the amendment.

Those who spoke at Thursday’s public hearing, a mandated step in the rulemaking process, urged the Environmental Management Commission to work with legislators to rescind the amendment. No one who spoke supported the definition revision.

“I think it’s a shame that the EMC does not have any discretion over what this rule looks like,” said Brooks Rainey, a lobbyist for the Southern Environmental Law Center. “Dictating the text of a rule to a rulemaking body takes away the whole point of having a rulemaking body. The North Carolina General Assembly are not experts on wetlands. The Home Builders Association is not an expert on wetlands. The Chamber of Commerce is not an expert on wetlands. But there are many experts on wetlands at DEQ. When rulemaking works as intended, the experts on the subject matter of the rule are involved in crafting the rule. Otherwise, we have ceded environmental rulemaking to political whims and lobby groups.”

Rainey went on to say that the majority party at the General Assembly make “the majority appointments” on the Environmental Management Commission and that the current commission “has greater sway” with this legislature than any in recent memory.

“I urge this EMC to use that influence and ask the General Assembly to stop sending over rules that have been pre-drafted. Take the politics out of rulemaking. Leave it to the experts. It is insulting to this commission, it is insulting to the agency, and it is insulting to the public who are effectively excluded from having any meaningful input at all,” she said.

That lack of input has frustrated residents, environmental advocates and scientists, who argue that ordering a one-size-fits-all definition will be detrimental to a state where wetlands, particularly on the coastal plain, are critical to reducing flooding, cleaning drinking water and supporting fisheries.

“Tying in wetlands protections to federal definitions that change with every administration leaves our communities vulnerable,” said Kerri Allen, a coastal advocate with the North Carolina Coastal Federation, which publishes Coastal Review. “Why should we hand off our responsibility to protect North Carolina’s natural resources to Washington. Wetlands in North Carolina, like pocosins, Carolina Bays and cypress swamps, deserve to be protected under rules written for our state’s needs, not buried under shifting federal priorities.”

Wetlands provide a host of crucial benefits, said Dr. Adam Gold, coasts and watersheds science manager with the Environmental Defense Fund.

They act as natural flood buffers, provide habitat for recreationally and commercially important wildlife, and filter pollution from waterways.

“Just one acre of wetlands can store up to a million and a half gallons of floodwater,” Gold said.

He cautioned that the federal government may further narrow the definition of wetlands. Earlier this year, the U.S. Environmental Protection Agency’s Lee Zeldin announced plans to revise the definition of Waters of the United States, also known as WOTUS.

“As someone who has worked in the intersection of environmental policy and coastal resilience for over two decades, I’ve seen firsthand how wetland loss leads to increased flooding, degraded water quality and disappearing fisheries habitat,” said Coastal Carolina Riverwatch Executive Director Lisa Rider. “These issues are already being impacted and many rural communities and working waterfront communities are already seeing the impact from what’s going on. Stripping protections further will only accelerate harm to ecosystems and the people here in coastal North Carolina.”

Chris Herndon, director of the North Carolina chapter of the Sierra Club, said rolling back wetlands protections will waste millions of taxpayer dollars in flood recovery and contribute to the loss of the state’s natural resources.

“The revised definition freely gives the decision of which wetlands to protect to the federal government. As a result, our state wetlands protections will be determined by federal officials based on federal priorities without any special consideration of the particular importance of wetlands in our state. North Carolinians should decide which North Carolina wetlands should be protected to the benefit of our local communities and local economies,” he said.

Southern Environmental Law Center senior attorney Julie Youngman said that, though the commission has been mandated to pass the rule, there is no deadline in when the rule must be established.

And, since the state’s leading environmental agency is complying with the law, there is “no harm being done to the will of the legislature by slowing it down and working with the legislature to try to fix the mistake that’s been made,” she said.

“It just defies logic that we are putting our fate in the hands of a federal administration that doesn’t seem to care about the same values that we care about here in North Carolina,” Youngman said. “There is not deadline in the statute. Take your time, work with the legislature, see if you can’t come up with a commonsense way to keep the wetland protections that we have in place, in place.”

DEQ will accept public comments through today via email with the subject line “Wetland Definition Amendment” to Sue.Homewood@deq.nc.gov and by mail to Sue Homewood, Division of Water Resources, 1617 Main Service Center, Raleigh NC 27699-1617.

The EMC is anticipated to hear recommendations on the revised rule during its Sept. 11 meeting. The 2023 Farm Act mandates that the rule cannot become effective until after legislative review, which is anticipated to take place during the General Assembly’s 2026 session.

The Environmental Protection Agency has final approval authority over the rule.

OAK ISLAND – When Gigi Donovan looks at the dune fronting a row of largely undeveloped oceanfront lots across the street from her home, she sees a false sense of security.

“We’ve seen this dune go away three times in 12 years,” she said.

The sandy mound that separates the public beach from private lots along a stretch of East Beach Drive wasn’t here just a few years ago. It has been built up and planted with dune-stabilizing sea oats through the town of Oak Island’s efforts to restore its oceanfront shore. 

Now there is enough of it to render at least one of the thin slices of long-vacant beachfront lots suitable for building.

That has Donovan and several of her neighbors worried.

Amber and Dean Russell live a few doors down from the Donovans. When the Russells bought their bungalow in 2022, they went ahead and purchased the beachfront lot directly across the street.

“We bought that just to keep our view,” Amber Russell said. “It’s not safe to build on.”

That’s a sentiment a group of homeowners and residents who live in the area of SE 58^th Street and East Beach Drive have expressed to town officials in the days and months since they received notice that a developer had applied for a Coastal Area Management Act, or CAMA, permit to build a house on one of the oceanfront lots.

They’ve made countless telephone calls and sent emails to North Carolina Division of Coastal Management and U.S. Army Corps of Engineers staff.

They’ve posted handmade signs that read “SAVE OUR BEACHFRONT — No Building on Narrow, At-risk Lots!” along their block of East Beach Drive.

They started an online petition that, as of June 13, had more than 600 signatures.

They’ve dug in their heels and pushed back, calling “for the return to responsible, sustainable environmental development on fragile oceanfront properties” in a plea to Oak Island’s mayor.

But even they acknowledge this fight is an uphill battle, one that is likely to rage on as low-lying coastal areas deal with the effects of sea level rise, more frequent, intense coastal storms and shoreline erosion.

Regulatory flexibility

Last month, a CAMA minor permit was issued for 5515 East Beach Drive. Proposed building plans on the 0.17-acre lot include a 2,856 square-foot house.

Town officials in an email responding to questions said they do not have on file when a home last stood on that lot. Aerial satellite images from Brunswick County show that this particular block of East Beach Drive had more homes along the oceanfront in 1989 than today.

The homes captured by satellite imagery in 1989 were gone in 2003, destroyed by nature or demolition.

Today, houses stand on only two of the oceanfront lots along this block of East Beach Drive.

Oak Island officials said the town does not have an overarching designation determining whether a lot is buildable based on oceanfront construction setbacks.

“For building on an oceanfront lot, the developer would submit information to show compliance with CAMA regulations and receive a permit if they meet said requirements,” an official said in an email.

Back in 2023, the North Carolina Coastal Resources Commission rubber-stamped Oak Island’s beach management plan, which gives beachfront builders more regulatory flexibility regarding how far back they must build from the sea.

The year before, the commission repealed regulations that allowed coastal communities to use the less restrictive setback measurement line for oceanfront construction, instead requiring builders to measure back from what is referred to as the preproject vegetation line.

The preproject vegetation line is the first line of stable, natural vegetation that is on an oceanfront before a large-scale beach nourishment project begins, one where more than 300,000 cubic yards of sand is placed on the beach.

But coastal communities that create and follow beach management plans approved by the commission may measure setbacks from the vegetation line rather than the preproject line as long as they meet the obligations detailed in their plans. Setbacks are 60 feet from the measurement line.

Coastal Resources Commission approved beach management plans for five coastal towns: Carolina Beach, Kure Beach and Wrightsville Beach in New Hanover County, and Oak Island and Ocean Isle Beach in Brunswick County. Once approved, plans must be reauthorized every five years.

Oak Island’s authorized plan calls for placing a total estimated 16.2 million cubic yards of sand on the beach over the next three decades. Under the plan, the beach will be nourished every six years.

Oak Island’s most recent sand nourishment projects were carried out in 2021 and 2022.

A nourishment project originally planned for winter 2024-25 was postponed after the town was informed contractor bids for the project “had far exceeded the amounts expected or budgeted,” according to the town’s website.

The project is again out for bids, and town officials anticipate a contract will be awarded and work will begin later this year.

Risky building

“They’re looking to the renourishment as the permanent solution,” Donovan said.

Dr. Gavin Smith, a North Carolina State University professor who researches hazard mitigation, disaster recovery and climate change adaptation, is not a big fan of beach nourishment.

“I think that overrelying on beach nourishment as a way to protect coastal development is fraught with problems,” he said in a telephone interview earlier this month. “It’s extremely expensive. It can take several seasons or it can take one bad storm and it’s gone.”

Smith pointed out that coastal zones, in particular barrier island, are highly dynamic and subject to significant change.

“Thinking about the construction of a house in a highly dynamic area, I think we need to be really careful,” he said. “Builders and homebuyers need to think about the life of that structure. The conditions that that site might face in 40 or 50 years is worthy of consideration. Individuals need to think about and actually ask a question: While you might be able to legally build in a given place, should you build there? I think that’s something that we all need to perhaps be more aware of.”

It’s time governments at all levels, local, state and federal, “do better,” he said.

“How can we recognize or applaud local governments that have the political will to adopt more stringent standards than the minimums? That’s what many governments adhere to is the minimum standards” Smith said. “Our codes are inadequate in the state, yet that’s what we adhere to in many cases. The National Flood Insurance Program should be viewed as a minimum, not the maximum. In an era of climate change we’re moving toward this idea of nonstationary, which we don’t know what the future holds. So, therefore our codes and standards ought to be that much more rigorous to account for the uncertainty. But instead, we’re relying on old data. We’re relying on old codes and that’s a significant problem.”

Sitting at the kitchen table in her home on a late May afternoon, Donovan mulled the many concerns she, her husband Mark, and their neighbors have raised to government officials.

They worry about whether more lights from new construction will hinder sea turtles from nesting on the shore. They worry about how stormwater runoff from new rooftops, driveways and other impervious surfaces may exacerbate flooding on their second-row lots.

They worry what one unwelcome coastal storm, be it a hurricane of any category or a potential tropical cyclone that packs a punch like the unnamed storm that pummeled Brunswick County last year, might do to the dune and any homes standing on the small land plots just behind it.

“We don’t know. That’s the thing. We don’t know what’s going to happen,” Gigi Donovan said.

In a statement to the town’s mayor last month, the Donovans and their neighbors wrote: “While we cannot control the weather, we can mitigate the damage it causes by responsibly managing the development of oceanfront properties.”

Oceanfront lot development “should be based on comprehensive land-use plans that take into consideration beach erosion, turtle nesting habitat, climate change, protection of private and town property, and preserving the legacy of (Oak Island) as a quaint, family-focused beach community.”

They are appealing to Coastal Resources Commission Chair Renee Cahoon, who determines whether or not property owners can make their case in a hearing before the full commission.

“We are very motivated and stubborn,” Gigi Donovan said in a text message. “If we allow them to plow ahead, steam-rolling any local opposition, our entire island beachfront will be irreparably destroyed.”

MANTEO — Amidst the tedium of a generally uneventful two-day meeting of the state Coastal Resources Commission last week, embers of prior tensions flared anew when Commissioner Jordan Hennessy contended that the panel had not properly authorized its lawsuit seeking to restore a protective environmental rule for Jockey’s Ridge.

The commission voted 9-3 against a motion Hennessy had advanced to withdraw from ongoing legal battle against the Rules Review Commission. Only Coastal Resources Commissioners Robbie Yates and Steve King voted with Hennessy, who took issue with how the lawsuit had been authorized.

“The crux of the issue here is that there was never a formal motion made, never a formal second made, or a formal vote to file a lawsuit against the Rules Review Commission,” Hennessy told the panel May 1 during the second day of the meeting. “And for something of that significance, I think it should have had a vote of this full commission to file suit against another state agency.”

After claiming he had been “stonewalled” by the commission and its legal counsel Mary Lucasse in seeking information, Hennessy, who was appointed to the board in 2023 by then-Insurance Commissioner Mike Causey, made a motion to direct counsel to “go ahead and withdraw that lawsuit.”

In her terse response, Lucasse detailed her answers to Hennessy’s “multiple requests,” including providing records of her authorization to bring the case.

“And then, as you know, information has been given about the lawsuit at every single legal update that we’ve had since then,” she continued. “I’ve kept you advised, and this commission has continued to be aware of and approve the steps that council has taken with that litigation from the beginning.”

The Coastal Resources Commission filed the lawsuit in late 2023 after 30 rules it had approved through a required periodic rules review process were removed from the Administrative Code, a move made shortly after the Rules Review Commission that fall kicked them back to coastal commission. The lawsuit asked the court to reinstate all 30 rules.

The 10-member Rules Review Commission, which is appointed by leaders of the GOP-controlled North Carolina General Assembly, argued those 30 rules were vague or inconsistent with state statutes. 

After filing the lawsuit, the Coastal Resources Commission voted to temporarily restore 16 of the rules state Division of Coastal Management officials said were critical to day-to-day operations.

One of those longstanding rules designated Jockey’s Ridge as an area of environmental concern, or AEC.

In April 2024, State Geologist Kenneth Taylor confirmed that Jockey’s Ridge is a unique geologic formation that qualified it as an AEC.

A public hearing on a proposed amendment to the coastal commission’s rule governing the Jockey’s Ridge AEC was held at the end of its April 30 meeting, with four people speaking in support of the proposed amended rule. The proposed rule is nearly identical to the original 1984 rule, which protects the landmark from incompatible development and sand loss. Public comment is open through June 2.

Nags Head Mayor Ben Cahoon, one of the commenters, delivered a sharp rebuttal of the Rules Review Commission’s rationale for abruptly revoking the AEC protection in 2023, asserting the Coastal Resources Commission’s “righteous” role in protecting Jockey’s Ridge while condemning the “absurdity of the process” in which the coastal commission had been forced to spend valuable time and resources.

“But now, ideological forces that value unrestrained and excessive commerce supported by industries that are biased against environmental regulation want to erode your authority,” Cahoon told coastal commissioners.

In February, a Wake County Superior Court judge ruled in the coastal commission’s favor, and the rules commission appealed. It’s unclear how quickly the dispute can be resolved.

Related: Judge restores state’s 30 erased coastal development rules

“The CRC’s actions relating to the rules designating Jockey’s Ridge as an AEC and establishing use standards are related to the rules that are part of the RRC’s appeal of the Superior Court’s March 3 amended order (of the lawsuit,)” the coastal commission said last week in an email response to Coastal Review.

“The appeal has not yet been docketed in the Court of Appeals,” the email stated. “After Appellant RRC files the record for the appeals, the parties will submit briefs to the COA (Court of Appeals.) Only after the appeal is fully briefed will the Court of Appeals decide whether to schedule oral argument. The time required for the Court Appeals to issue an Opinion varies greatly from a few months after an appeal is fully briefed to more than a year.”

Coastal Resources Commission Chair Renee Cahoon, also in addressing Hennessy’s contention, said that the lawsuit was a direct result of the legislature’s budget provision that allowed the the codifier of rules to withdraw the rules. The rules pertinent to the Jockey’s Ridge AEC designation, “just disappeared from existence — 30 or more at a time,” she said.

“It made a major impact on the people that we serve in the state of North Carolina and the 20 coastal counties,” Cahoon said. “This was a decision that was not taken lightly. It was not taken unadvisedly, and it was taken in response to, basically, the disappearance of rules.”

Hennessy is a former top aide to Republican Sen. Bill Cook who represented Dare County in the legislature. He later became a businessman with county affordable housing development contracts and dredging project contracts about which a federal grand jury sought county records and subpoenaed six county commissioners late last year.

Hennessy also questioned that it took nearly a year for the lawsuit to be filed after it was authorized as well as the expenses incurred dealing with the protracted legal action.

“It’s by law that we have to go through the rules review process,” he said. “If you don’t like it, ask the legislature to change the law, but it’s to the point of that the legislature has had to appropriate two and a half or a quarter of a million dollars to the Rules Review Commission to defend its lawsuit against us.”

Commissioner Lauren Salter responded that the state Division of Coastal Management staff tried to “resolve (the Rules Review Commission’s) nitpicking issues” repeatedly, and it wasn’t the Coastal Resources Commission that picked the fight.

“We sought relief for the people of North Carolina, so that they would know what rules were in play and not lose rules overnight,” she said. “That’s why the lawsuit was filed after 307 days. We tried everything.”

Coastal towns and large homeowner associations representing beachfront properties now have the choice to install a controversial alternative to sand fencing on ocean-facing shores.

The North Carolina Coastal Resources Commission last week amended a rule to allow those entities to apply for a permit to place wheat straw bales on ocean shorelines as a means to protect and build up beachfront dunes.

The rule, which will now go to the state Rules Review Commission for final approval, limits the use of wheat straw bales to government organizations and HOAs with more than 1 mile of oceanfront shoreline.

Use of wheat hay bales is restricted to those groups until the state gains a better understanding of their impacts to wildlife, including sea turtles, shoreline environment, and their efficacy.

In a 7-5 vote in favor of the rule, some on the Coastal Resources Commission, or CRC, reiterated concerns that have been repeatedly raised in recent years by wildlife officials and environmental organizations.

Those groups, including the North Carolina Wildlife Resources Commission, N.C. Audubon, North Carolina Wildlife Federation and Southern Environmental Law Center, argue additional studies need to be done to understand the potential impacts of wheat straw bales to shoreline habitat and the animals that rely on that habitat.

“I just would like to say I think we’re opening ourselves up to a lawsuit,” Commissioner Lauren Salter said during the CRC’s April 30 meeting in Manteo. “I think Southern Environmental Law Center is going to definitely pursue it based on the comments that we received.”

The effectiveness of wheat straw bales on an oceanfront shore was initially tested as an alternative to wooden sand fencing in 2015 on Figure Eight Island, a privately owned island north of Wilmington.

The North Carolina Division of Coastal Management issued a Coastal Area Management Act permit to two properties to initial a pilot study on the New Hanover County island.

The bales eventually became covered with sand, but, within a few months, they were washed away in a storm, according to the division.

Wheat straw bales were not allowed on a North Carolina beach again until 2023, after Ocean Isle Beach officials requested approval to place them on a portion of the town’s oceanfront shore.

Ocean Isle Town Administrator Justin Whiteside reminded commissioners last week that the town made the request because sand fencing was hard to acquire in the months following the COVID-19 pandemic.

Town officials noted the pilot project on Figure Eight Island and wanted to mimic it, he said.

“It was successful in some areas,” on Ocean Isle, Whiteside said. “Then we did have a storm and some of it washed away. Others, it’s still covered up and, as far as I’m aware, it’s still there just all covered up with sand.”

Division officials have said they do not expect a significant uptick in the use of straw bales because they tend to cost more than traditional sand fencing and they would need to be replaced more frequently than fencing.

Coastal Resources Commissioner Jordan Hennessy last week said that his position on the rule amendment remained the same as those he had expressed during a previous meeting.

Hennessy questioned whether the rule, by omitting private property owners from being able to apply for a permit to install wheat straw bales, is constitutional.

“I’ll be voting against the rule because I don’t believe it’s constitutional,” he said.

The CRC’s legal counsel, Mary Lucasse, advised that the rule amendment is not unconstitutional.

“I don’t see anything unconstitutional that’s jumping out on me, and I don’t actually understand your argument, commissioner, as to why you think it’s unconstitutional,” she said. “We do a lot of rulemaking that focuses on situational things, and we sometimes try things, as we did with (wheelchair-accessible) mats, with local governments being able to do it first, and we have not drawn any challenges to that based on constitutionality or other things, and I don’t see an issue in that.”

Under the amended rule, wheat straw bales cannot impede public or emergency vehicle access or be installed in a manner that endangers nesting sea turtles, which is similar the sand fencing rule.

Installation of wheat straw bales will require consultation with the U.S. Fish and Wildlife Service and the state Wildlife Resources Commission through permit application review. Ties or bindings on bales must be removed to reduce debris and the possibility of wildlife entanglement.

Straw bales will be limited to 10-foot-long sections, which is the same requirement for sand fencing, and can be no wider than 2 feet or higher than 3 feet. Bales can not be more than 10 feet waterward of the first line of stable, natural vegetation, erosion scarp or toe of a frontal dune.

Sections of straw bales, sand fencing, or Christmas trees, which may also be used to trap sand, must be spaced 7 feet apart. Nonfunctioning, damaged bales or stakes that have moved from their alignment must be repaired or removed from the shore.

Not much has changed in the saga surrounding shellfish farming in coastal waters of Onslow and Pender counties.

That was made clear during a public hearing Tuesday night in the little town of Holly Ridge in Onslow County, where Topsail Island-area residents and aquaculture farmers took turns speaking about the prospect of more shellfish leases in the area.

Perhaps the one consensus among those who oppose additional leases and those who hope to raise shellfish in them is that they are where they are because new leases are not allowed in waters of neighboring coastal counties to their north and south.

Shellfish moratoriums in waters from Cedar Island south to Brunswick County have essentially funneled growers to waters around Topsail Island, prompting what has become an unceasing push to get the state to pump the brakes on new leases in Onslow and Pender counties.

Within the span of one week, the North Carolina Division of Marine Fisheries held two public hearings – one in Pender, the other in Onslow – on lease applications for shellfish farms that would collectively take up more than 30 acres.

That’s more than double the total acreage of shellfish leases in nearby New Hanover County, Topsail Beach resident Tate Tucker said during the Tuesday night hearing, where he reiterated comments he had made at a public hearing in Pender County the previous week.

“Like I said last week, say this whole Eastern Seaboard of oysters is a boat. We’re the hole in the boat, right? And they’re filling it just as fast as they can with leases, as much as they can. I don’t think we can keep going like this if we don’t have an organized plan. If we don’t fill that hole, the boat’s going to sink,” Tucker said.

The Topsail Island Shoreline Protection Commission, or TISPC, which is composed of elected officials from each of the island’s three towns — Topsail Beach, Surf City and North Topsail Beach — has since last year called for a temporary moratorium on new shellfish leases. County officials in Onslow and Pender have made the same request.

“As a commission, we have become increasingly concerned about conflicts between shellfish leases and other uses of our natural resource waters that include commercial and recreational fishing, boating, kayaking and other coastal land and water uses, not to mention the potential impacts on property values and esthetics,” TISPC Chair William Snyder said.

On April 10, Rep. Carson Smith, R-Pender, introduced legislation that would require a statewide study on shellfish leasing and the current lease moratoriums.

Under House Bill 841, the North Carolina General Assembly-created North Carolina Policy Collaboratory would evaluate everything from existing leases and the history and reason for current permanent and temporary moratoriums to economic impacts of shellfish aquaculture expansion on coastal economies and tourism, and the different potential environmental impacts of bottom leases and water column leases.

A final report of the study would be due to legislators by May 1, 2026.

Chris Matteo, acting president of the North Carolina Shellfish Growers Association and East Coast Shellfish Growers Association vice president, said Tuesday that the legislation “thankfully” does not call for a moratorium in Onslow and Pender counties.

He also said the measure is unlikely to pass.

“There’s been plenty of impact studies done over the course of time and, quite frankly, this area may be relatively new to intensive aquaculture, but the rest of the East Coast and West Coast of this country, it’s been in play for a very long time and the positive impacts are irrefutable,” Matteo said.

As he had in previous public hearings, Matteo suggested that residents and local leaders ask state elected officials to lift moratoriums on shellfish leases in other coastal counties.

He rebutted comments made by others who spoke at the hearing that shellfish farms negatively affect property values.

Nelson Bullock, who started Gator Bay Oyster Co. with his wife, mirrored sentiments of other shellfish lease applicants who argue shellfish farming is beneficial to the environment.

The Bullocks have applied for a 3.82-acre shellfish bottom and water column lease in Onslow County’s Ellis Cove.

“I’ve been involved in oyster farming for over 14 years now and have witnessed firsthand all the positive impacts of shellfish aquaculture on both the environment and our communities,” Bullock said. “Oysters naturally filter and clean the water. They create habitat and they also help stabilize the shoreline. Shellfish farming is one of the most sustainable forms of aquaculture offering significant ecological and economic benefits.”

Bullock said he was committed “to being a good neighbor in the water.”

John Eynon, owner of Big Cypress Mariculture, said he understands concerns raised by some local fishermen, who argue leases impede access to fishing spots around the island.

“I’m more than happy to talk with people and try to figure out how I can mitigate whatever those impacts might be, whether it’s by using certain gear types, positioning these gear in certain places, orienting in a certain way,” Eynon said.

He has applied for a 2.73-acre bottom and water column lease in Sneads Creek, a location he said he picked because it is “tucked away.”

“It’s not a navigational hazard,” he said. “It’s not impacting anyone’s views, which I know have been issues with other lease proposals.”

TISPC Vice Chair Larry Strother, who also chairs North Topsail Beach’s Beach, Inlet and Sound Advisory Committee, reiterated that the concern raised by the island towns is that more studies need to be done before additional leases are permitted.

“There are some leases that are going to affect the recreational activity, the fishing and everything else that takes place around the island, which is what we provide when we represent the recreation part of our beach,” he said. “We just want to make sure that our recreational activities and our fishing that’s been going on for all these years is going to be able to continue and cohabitate with the leases. We’re not opposed to shellfish leasing. We are opposed to not having it studied.”

Topsail Island leaders are unwavering in their pursuit of stopping new leases of shellfish farms in the waters around them.

Months have passed since the island’s three towns — North Topsail Beach, Surf City and Topsail Beach — and their respective counties banded together to ask state legislators for a moratorium on new shellfish leases in Onslow and Pender’s coastal waterways.

“Of course, we all support aquaculture,” North Topsail Beach Alderman Mike Benson said during a recent town board meeting.

But the rising number of leases, fueled because of moratoriums in surrounding coastal counties, has led to what local leaders say amount to mounting conflicts between recreational uses of public waters and shellfish leases that restrict access to those waters.

Prohibiting all new shellfish leases across Onslow and Pender counties could be detrimental to the state’s growing shellfish industry, one that reportedly boasts an economic impact of $30 million annually in North Carolina.

“This industry is a particularly bright spot for North Carolina in that farming clams and oysters is quite sustainable environmentally,” said Dr. Jane Harrison, a coastal economics specialist with North Carolina Sea Grant. “We’ve seen a huge uptick in production numbers from farming oysters, in particular, over the last decade and we don’t want to lose that momentum.”

North Carolina Sea Grant and the North Carolina Coastal Federation have teamed up in hopes of launching a plan that would result in the creation of a Geographic Information System, or GIS, database that pinpoints areas where leases may or may not be suitable in the waterways behind the 26-mile-long island.

That database would be built by a GIS specialist from North Carolina State University using feedback the organizations aim to get from different focus groups made up of users of those waters, be it shellfish farmers, fishing guides, recreational fishers, or island waterfront property owners.

“We want to bring together many different voices to gather their perspectives and then put their information, their interest, into that GIS database,” Harrison said.

Sea Grant and the Coastal Federation, which publishes Coastal Review, have applied for a grant through the National Oceanic and Atmospheric Administration’s National Sea Grant Office to fund the plan.

If awarded the grant, the plan would kick off around September, when the GIS specialist would gather existing data, including information from the University of North Carolina Wilmington’s Shellfish Lease Siting Tool, to work up a baseline of information that will be presented to focus groups. UNCW’s interactive tool assesses coastal conditions in the state to help shellfish growers locate new or expand current operations.

There would be three focus groups: one consisting of shellfish growers in Pender and Onslow counties, one that includes recreational water users and waterfront property owners in Onslow County, and one that includes those groups in Pender County.

Those groups would be initially separated out “because we want folks to feel like they can fully share whatever their concerns or needs are and we don’t want to create an environment of conflict,” Harrison said. “We just want spaces where people can give us every piece of information they have and then we will digest it, compile it, and then have some community conversations.”

Feedback from those conversations would be gathered and used to create a draft resource use agreement and guidelines for equal water access in partnership with the North Carolina Division of Marine Fisheries.

Once finalized, that resource use agreement and guidelines would be published to the public, where it could be used in other coastal regions in not only North Carolina, but other states.

The proposal has gained traction with local officials. The Topsail Island Shoreline Protection Commission, or TISPC, and the counties, has signaled its support for the plan, Harrison said. The commission is made up of elected officials and local government appointees from the island’s three towns.

In an April 2 letter to the Division of Marine Fisheries, North Topsail Beach highlighted the plan as “another justification for a pause” on new shellfish leases.

“A temporary pause would allow us to evaluate the current situation, develop comprehensive management strategies, and ensure that future growth in the shellfish industry is balanced with the needs of our community and the environment,” the letter states.

The North Topsail Beach Board of Aldermen unanimously agreed to send the letter to the division ahead of its April 22 public hearing on six new proposed shellfish leases in Onslow County.

The hearing is scheduled to be held in person at 6 p.m. at the Holly Ridge Community Center and virtually via Webex.

That hearing will follow one on two proposed shellfish leases in Pender County scheduled for 6 p.m. April 15 at Topsail Beach Town Hall, 820 S. Anderson Blvd., and virtually via Webex.

During the April 2 meeting of North Topsail’s town board, Alderman Benson said the consensus of the island’s shoreline protection commission is that the towns and counties continue their request for a moratorium.

A proposed draft bill for a moratorium was not introduced in either the state Senate by its March 25 deadline or the House as of publication of this report. The deadline for the House was extended to April 10. 

“There are 111 leases in Onslow County,” Beson said. “We have 647 acres of land in those 111 leases.”

North Topsail Beach and the northernmost portion of Surf City are in Onslow County.

There are opportunities to identify areas within the waterways of the island that are “truly not well served by shellfish aquaculture,” Harrison said.

“There may be special fishing spots that the charter captains want to make sure they have access to,” she said. “There may be viewsheds that are very important to local residents. We have a lot of successful entrepreneurs in shellfish aquaculture in these two counties and shellfish aquaculture produces seafood that many of us like to eat. At the end of the day, it may be that the industry in Pender and Onslow counties can’t grow at the rate it has been. There might be a need for it to be less expansive because of existing leases and farms. But what I want to steer us away from is just a blanket prohibition, as if no new farm could ever take place in a copacetic way.”

Environmental Protection Agency Administrator Lee Zeldin said last week that he plans to make good on a commitment to revise the “waters of the United States” definition, leading conservation groups to worry what will happen to federally protected waters and wetlands.

One advocate says the new administration’s approach turns a blind eye to science showing how all wetlands — most especially those to be erased from federal jurisdiction – serve vital protective functions.

Sworn in Jan. 29 to lead the federal agency with the mission to protect the nation’s human health and environment, Zeldin explained during a press briefing March 12 that while going through the confirmation process, he had spoken with senators who “were passionately advocating on behalf of their farmers, their ranchers and other land owners” about issues concerning waters of the U.S., often called by the acronym WOTUS.

He vowed that as soon as he got into office, he would do everything in his power to fix “WOTUS once and for all” and the agency is “pursuing a definition that is simple, that is durable and it will withstand the test of time,” Zeldin said.

The federal definition has been the focus of a fair number of lawsuits, since it was first approved as part of the Clean Water Act, which is administered by the EPA and Army Corps of Engineers. Enacted in 1972, the act prohibits discharging pollutants without a permit from a point source into “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.”

The EPA calls “waters of the United States” a threshold term that “establishes the geographic scope of federal jurisdiction” under the Clean Water Act. The term “waters of the United States” is not defined within the Clean Water Act. Agencies were given the authority at the time to determine what qualifies, and the definition has undergone a few modifications since then.

The most recent change is the result of a May 2023 Supreme Court decision known by the plaintiffs’ surname, Sackett v. EPA. Judges ruled in favor of the Idaho landowners, who argued that the section of their property they were fined for backfilling was not considered “waters of the United States” because the wetlands were not adjacent to navigable waters. The case led to the federal definition of WOTUS being amended to exclude noncontiguous wetlands.

The EPA stated March 12 in a press release that the Sackett case, “which stated that the Clean Water Act’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers and lakes,” will guide the review.

As part of the process, the agencies said in the announcement that there were plans to hold at least six listening sessions over the next few months both virtually and in person. Registration and dates are to be posted on the EPA website.

Zeldin said during the press conference that, “what we’re looking for is to simply follow the guidance from Sackett. It gave us a clear path in determining what waters are waters of the United States. It found that only those wetlands with a quote, ‘continuous surface connection,’ to a relatively permanent water are waters of the United States,” Zeldin said, adding that the court also struck down the long-used “significant nexus test, leaving only those wetlands that abut or are adjacent to waters of the United States as jurisdictional.”

Republican senators and representatives offered their support during the briefing as well as Farm Bureau President Zippy Duvall.

“WOTUS has been a pain in the side for our farmers and ranchers. Our farmers and ranchers want to do what’s right; they just want to know what right is,” Duvall said, adding that the last administration had “vague wording like ‘relatively permanent.’ Can anybody define that,” Duvall asked. “We look forward to that clarity.”

In a statement last week, National Association of Home Builders Chairman Buddy Hughes, a home builder and developer from Lexington, said the organization “commends the EPA for moving to make changes to the WOTUS rule that will protect our nation’s waterways and provide builders and developers the clarity and certainty they need in the federal wetlands permitting process to help house America’s citizens.”

Opposition in the week since the announcement has been at least as equally vocal and perhaps more strongly worded.

The Environmental Protection Network, an organization of more than 650 former EPA career staff and political appointees, said in a release that it “strongly condemns” the EPA’s “rollback of federally protected waters and wetlands, coupled with the release of a new guidance that significantly narrows the scope of the Clean Water Act.”

A former EPA office director Betsy Southerland warned in a statement from the network that “The ‘Sackett’ decision excluded about 60% of wetlands and all ephemeral streams from federal protection. With this guidance, Administrator Zeldin is now codifying an even narrower interpretation of ‘relatively permanent waters,’ which could strip protections from countless seasonal and intermittent streams. Scientific evidence is unequivocal: These waters are vital to maintaining the health of major rivers and lakes. Without them, drinking water quality will decline, and the nation’s waters will be further imperiled.”

Adam Gold, Coasts and Watersheds Science manager for the Environmental Defense Fund, told Coastal Review that with the Trump administration’s intention to narrowly implement the 2023 Supreme Court Sackett v. EPA decision was, “to collect public comment on ambiguous terms from the Sackett decision, like a ‘continuous surface connection.’ This process will likely further limit protections for North Carolina’s wetlands.”

Gold said that while it remains to be seen if there will be a new WOTUS rule from this process, the new EPA announcement seems to point toward “a potential wetness test or surface water requirement where wetlands may be excluded from Clean Water Act protections if they dry out, even for part of the year, and therefore do not have a ‘continuous surface connection’ to water bodies.

“This approach ignores the science that clearly shows how all wetlands, especially those that would be most likely to lose protections, provide essential flood reduction, water quality and ecologic benefits.”

On the state level

Around the same time the U.S. Supreme Court ruled in favor of the Sacketts, the North Carolina General Assembly directed the state Environmental Management Commission in the 2023 Farm Act to align the state definition of wetlands with the federal definition. This removed any state wetlands protections beyond those meeting the federal definition.

The law required that the commission insert the sentence, “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” the federal code as it was written into the state’s wetlands definition, and the wording may not be contested by the Rules Review Commission.

The North Carolina Department of Environmental Quality began implementing the definition when the act was passed in June 2023 and the Environmental Management Commission has been going through the steps to codify the rule.

“The EPA guidance confirms that federal protection for wetlands will be limited and millions of wetlands, including coastal wetlands, will be at risk,” Grady O’Brien, water policy manager for the North Carolina Conservation Network, told Coastal Review.

“However, federal jurisdiction has no relationship to North Carolina’s interest in protecting wetlands for flood storage,” he continued. “In fact, the Sackett decision stated that the Supreme Court expected states to protect wetlands independent of federal jurisdiction. Now would be a good time for the North Carolina General Assembly to revisit state wetlands protections to prevent additional flooding.”

Gold, with the Environmental Defense Fund, said that if wetlands must have surface water connections nearly year-round to have Clean Water Act protections, the organization’s research published last year in Science estimates that this could leave up to 3.2 million acres of nontidal wetlands in the state without that layer of federal protection.

“The lack of state-level wetlands protections in North Carolina means that the only layers of protection left could be local protections or ‘protected’ public lands. With forthcoming changes to the WOTUS definition, we can expect increasing wetlands loss and increasing risks to people and homes due to more dangerous flooding, declining water quality and the loss of vital habitat,” Gold said.

Southern Environmental Law Center Senior Attorney Julie Youngman told Coastal Review that Trump’s EPA announced that it intended to roll back federal wetland protections even further, “endangering North Carolinians because the General Assembly has tied us directly to whatever the federal government does, no matter how harmful to North Carolinians. In light of EPA’s malicious actions, the General Assembly must protect North Carolina’s wetlands at the state level, to protect communities from flooding, hurricanes, and harm to our water supplies and seafood industry.”

Related: Commission OKs proposed wetlands rule for public comment

Jessie Ritter, associate vice president of water and coasts with the National Wildlife Federation, told Coastal Review that North Carolina’s wetlands and waterways are essential to the health of our coasts because they buoy our fisheries, support the economy and buffer communities from extreme weather.

“A Supreme Court decision in 2023 left many North Carolina wetlands and streams without federal protection and a state law passed later that year also eliminated state protections for these waters,” Ritter said. “The recent announcement from the EPA suggests the agency plans to remove federal safeguards for even more water bodies. If this happens, coastal communities will see increased development immediately upstream, leading to more flood-prone rivers that carry dirtier water to our bays.”

Coastal Carolina Riverwatch Executive Director Lisa Rider told Coastal Review that as a lifelong coastal North Carolinian, she knows firsthand that wetlands are more than just a word being debated over definitions.

“Wetlands are our first line of defense against flooding, acting like natural sponges that absorb stormwater before it can rush into our communities “One acre of wetland can hold up to 1.5 million gallons of water, reducing flood risks and protecting our homes and businesses. They also filter out pollution and prevent runoff from overwhelming our coastal waters,” Rider said.

The Environmental Management Commission voted to send to public notice and hearing a proposed amendment to “clarify the definition of wetlands” Thursday during its meeting in Raleigh.

Commissioners Yvonne Bailey, Marion Deerhake, Dr. Jackie MacDonald Gibson and Robin Smith all voted against the motion to advance new language that codifies reduced state protections.

The commission, which directs and creates rules for several divisions under the North Carolina Department of Environmental Quality, was ordered close to two years ago in a law called the 2023 Farm Act to insert into the definition of wetlands one sentence that aligns the state’s definition of wetlands to the federal definition, which narrowed Clean Water Act jurisdiction.

The commission’s vote took place the day after Environmental Protection Agency Administrator Lee Zeldin announced plans to revise the definition of “Waters of the United States,” or WOTUS, the acronym given to federally regulation waters.

Sue Homewood, senior branch coordinator with the Division of Water Resources, told the commission Thursday that the law required changing the definition in the state administrative code, “and it specified exactly the language to be changed, that ‘wetlands classified as Waters of the State are restricted to Waters of the United States as defined by’ federal regulations.”

NCDEQ has been implementing the definition since it was approved in June 2023, as directed by the North Carolina General Assembly, while the commission goes through the rulemaking process to add that sentence to the existing definition of “wetlands” in the general statute.

The order contains explicit directions that the amendment had to be included as written and couldn’t be challenged by the Rules Review Commission.

Smith said she was voting in protest against the motion because it was “extremely bad environmental policy to outsource decisions about protection of state waters to the decision of a federal agency about what federal jurisdiction is. So that’s just fundamentally not a good direction.”

Smith said that a process question also comes up, “that the General Assembly unfortunately has gotten into what I think is the very bad habit of doing what they did with this session law, which is to attempt to dictate the wording of an administrative rule and then cause the session law to expire when the rule is adopted, and without ever changing fundamental general statutes that actually do define what state waters are.”

The state already operates under an existing definition of waters in the statute, she said.

Smith said the existing state waters definition includes “any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway, or other body or accumulation of water, whether surface or underground, public or private, or natural or artificial, that is contained in, flows through, or borders upon any portion of this State, including any portion of the Atlantic Ocean over which the State has jurisdiction.”

This definition in the statute has not been amended by the General Assembly, Smith said, adding that the law expires when the rule is adopted.

“I think it raises questions of whether, looking toward the future, whether the rule will be considered consistent with state law, given the failure of the General Assembly to actually amend the definition of waters in the general statute, and that’s just a bad practice,” Smith said.

She added that she thinks this rule amendment “creates a really unfortunate situation in terms of potential conflict” between Environmental Management Commission rules and the statutes under which the commission operates its water permitting programs. “For that reason, I’m going to vote against. It’s a protest vote. I think it’s just a terrible process legally and administratively.”

Commissioner Steve Keen asked Smith whether she planned “to vote to violate the statute” because the statute directs the rule change.

Smith said she was voting against adoption of the rule, “because I believe the rule will turn out to be inconsistent with a general statute that has not been amended, and the session law that directed the change in the rule will expire as soon as the rule is adopted. That’s in the session law itself.”

Commissioner Kevin Tweedy “completely” agreed with Smith, calling the logic behind the amendment poor in two respects: lost wetlands protections and diminished flood resiliency.

“We’re putting millions and millions of dollars into that,” Tweedy said. “It’s like one thing is fighting the other, and I just don’t think it’s good policy.”

Homewood, with the Division of Water Resources, said that the public comment period for the wetlands definition amendment will likely take place in April, and the public hearing would be between June 2 and June 16, when the comment period is expected to end. After that, a hearing officer’s report will be brought back to the commission in September and if approved, would go to the Office of Administrative Hearings, or OAH.

Related: Commission set to further curb state wetlands protections

Because the law exempts the rule change from Rules Review Commission review, its effective date would be pending a legislative review, she said, and that timing would be with the 2026 session.

“Because these rules are part of the water quality standards and the triennial review, the rule amendment post-legislative approval, would have to go to EPA for final approval,” she said, “so we cannot predict an implementation date. But as I said, we are implementing these right now.”

When the Environmental Management Commission was discussing the motion to amend the definition of wetlands on the state level, there was no mention of the EPA’s intention to overhaul the WOTUS definition.

The EPA and Department of the Army, which oversees the Corps of Engineers, announced Wednesday a joint memorandum issuing guidance to field staff on the implementation of “continuous surface connection” consistent with the Supreme Court’s May 25, 2023, decision in the case of Sackett v. EPA.

The Supreme Court ruled in favor of the Sacketts of Idaho who argued that the wetlands they were backfilling on their property did not qualify as jurisdictional wetlands under the federal definition. The EPA adjusted later in 2023 its definition to conform to the Supreme Court decision.

The definition states that wetlands must have a “continuous surface connection” to federally protected waters to qualify as waters of the United States and be protected under the Clean Water Act.

The Clean Water Act was put in place in 1972 and prohibits discharging pollutants from a point source into “navigable waters” unless otherwise authorized. Navigable waters are defined in the Clean Water Act as “the waters of the United States, including the territorial seas.” WOTUS is not defined in the act itself but is in the code of federal regulations.

“We want clean water for all Americans supported by clear and consistent rules for all states, farmers, and small businesses,” Zeldin said in a statement. “The previous Administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business. Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs, and families to help Power the Great American Comeback.”

It has been nearly two years since the North Carolina General Assembly ordered the Environmental Management Commission to adopt a rule that aligns the state’s definition of wetlands with the federal definition, which was narrowed by a May 2023 Supreme Court decision.

Despite the vocal objections from conservation organizations and what the commission claims to be “differences” with the state agency it oversees, members are expected to consider during its meeting Thursday in Raleigh going to public notice and hearing for the proposed amendment to the state’s definition of wetlands, one of the many steps required in the rulemaking process.

The 15-member commission adopts rules for several divisions of the North Carolina Department of Environmental Quality, including the divisions of Air Quality, Land Resources, Waste Management and Water Resources.

The General Assembly directed the commission in a 2023 law to implement the rule that reads, “Wetlands classified as waters of the State are restricted to waters of the United States as defined by (the Code of Federal Regulations).”

The current definition of Waters of the United States, or WOTUS, effective Sept. 8, 2023, includes navigable waters, its tributaries and adjacent wetlands, but excludes isolated wetlands, which are wetlands without a surface connection to the jurisdictional waters. The federal definition is part of a decades-long discussion, and, in some cases, disagreement, linked to the Clean Water Act enacted in 1972.

A DEQ spokesperson told Coastal Review in an email that the Division of Water Resources began implementing the new definition of wetlands following the General Assembly’s adoption of that law, also called the 2023 Farm Act, which included a revised definition of wetlands found in the state administrative code.

“The rules that are moving forward in the N.C. Environmental Management Commission are codifying the new definition in the rules. The process of codifying a rule requires approval by the EMC and a public hearing,” they added.

Grady O’Brien, water policy manager for the North Carolina Conservation Network, explained that the change to the wetlands definition rule the commission is considering is required by the law from the 2023 legislative session.

“Unfortunately, this means there’s no room to alter the language at this point; any further change would require legislative direction. It’s important to note that the state didn’t have to make this change — North Carolina had a state-level definition for wetlands that could have remained,” he added.

That definition covers wetlands not directly connected to other bodies of water.

“By passing the 2023 Farm Act that ordered the EMC to adopt this rule to gut North Carolina’s wetlands protections, North Carolina’s legislature failed to protect our water quality, communities, economy, and special natural resources. With this rulemaking, 2.5 million acres of flood-storing, water-filtering wetlands will be at risk of pollution and destruction,” Southern Environmental Law Center Senior Attorney Julie Youngman told Coastal Review.

During its Jan. 8 meeting, the commission’s water quality committee approved taking the request before the full commission. During the March 13 meeting, members are to be asked to consider initiating the rulemaking process by proceeding to public notice and hearing and to amend “Definitions” to comply with the 2023 session law, according to agenda documents.

“The revised definition of ‘wetlands’ in the rule proposed for amendment is applicable to all wetlands in North Carolina. Any effects of the changes are effects imposed by the Session Law and are not caused by the proposed rule amendments directly,” according to the division.

If the commission decides to move forward on Thursday and follows the staff’s suggested timeline, the public comment period could start April 15. A public hearing would be held no sooner than June 2 but before the comment period ends June 16.

But that public comment period might just be an exercise in futility.

Youngman explained that the way that section 15 of the 2023 Farm Act is written, “the General Assembly clearly intended to take away the public’s right to participate meaningfully in the rulemaking process and forbid anyone from challenging the elimination of wetlands protections in court.”

Section 15 states “The Commission shall adopt a rule to amend the Wetlands Definition Rule consistent with subsection (c) of this section” and “the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of subsection (c)of this section,” which shows that the commission is being ordered to adopt the rule exactly as the General Assembly phrased it, she said.

The next sentence, the “Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes,” is where the General Assembly is saying that no one can challenge the rule, she said. That state law refers to the rules review process.  

“DEQ will consider all public comments received during the public comment period for the EMC’s consideration prior to it adopting the final rule,” a DEQ representative explained.

Youngman said that “we hope that the time lag in the EMC adopting the rule has given the General Assembly an opportunity to realize how harmful the anti-wetlands provision of the 2023 Farm Act is and pass a new law to protect wetlands after all.”

According to the commission’s annual report about 2024 for the General Assembly, dated Jan. 1, 2025, members “began the rulemaking process per the statute; however, the rulemaking remained in committee due to differences between the EMC and DEQ over the regulatory impact analysis. It is noted that the statute made the changes in law and they are in effect until the new rule is approved.”

The Farm Act of 2023 was filed April 4 of that year and included a “Clarify Definition Of Wetlands” stating that “Wetlands classified as waters of the State are restricted to waters of the United States as defined by 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3″ and was amended a few weeks later to add the exclusion of converted cropland from the wetlands definition.

The next month, the Supreme Court changed the federal definition to waters of the United States.

The court, in its decision in what was known as Sackett v. EPA, ruled in favor of the Idaho landowners. The Sacketts had argued that their property was not considered “waters of the United States” because the wetlands the EPA had fined them for backfilling were not adjacent to navigable waters. The court’s decision led to the federal definition of WOTUS being amended to exclude noncontiguous wetlands.  

Then-Gov. Roy Cooper vetoed the state measure on June 23, 2023, because of the wetlands provision, but the veto was overridden four days later, with the law taking effect that same day.

“The provision in this bill that severely weakens protection for wetlands means more severe flooding for homes, roads and businesses and dirtier water for our people, particularly in eastern North Carolina. This provision coupled with the drastic weakening of federal rules caused by the U.S. Supreme Court’s recent decision in the Sackett case, leaves approximately 2.5 million acres, or about one half of our state’s wetlands, unprotected,” Cooper said at the time. “The General Assembly has allocated tens of millions of dollars to protect the state from flooding and my administration is working to stop pollution like PFAS and other contaminants. This bill reverses our progress and leaves the state vulnerable without vital flood mitigation and water purification tools.”

O’Brien told Coastal Review that the effects of the change to the state wetlands definition were “further complicated” by the Sackett decision, which reduced the amount of wetlands protected under the federal definition.

“For instance, North Carolina’s isolated wetlands, previously protected by statute, will likely no longer qualify as wetlands under the new definition and thus not be protected,” he said.

North Carolina Coastal Federation Executive Director Braxton Davis told Coastal Review that, although the U.S. Supreme Court decision in the Sackett case left millions of acres of freshwater wetlands unprotected across the nation, the court recognized the high value of these habitats in reducing flooding, improving water quality, and supporting important wildlife.

“Their decision left the states with the responsibility to protect these systems, but the EMC is now required to move forward with rules that leave vast acreages of freshwater wetlands unprotected in North Carolina. We are hopeful that the General Assembly will revisit this issue in this year’s legislative session,” Davis said.

The Coastal Federation publishes Coastal Review.

Coastal Carolina Riverwatch Executive Director Lisa Rider told Coastal Review that the Environmental Management Commission’s review of wetland definitions comes at a critical time.

“Federal rollbacks have left many of our wetlands vulnerable, and weakening protections at the state level will only make things worse,” Rider said.

“The EMC must not only maintain but strengthen protections for isolated and non-federally jurisdictional wetlands by adopting a state-specific definition that prioritizes coastal resilience,” she said. “The EMC should implement stricter stormwater management, prioritize wetland conservation over mitigation banking, and integrate wetland protections into broader plans. By implementing robust state-level protections, North Carolina can uphold its commitment to preserving vital wetland ecosystems for current and future generations.”

About the meeting

The commission’s committee meetings are scheduled for Wednesday and the full commission is to meet Thursday in the ground floor hearing room of the Archdale Building in Raleigh. The public can attend in person or join the meeting by computer or phone. Instructions to access the meeting are on the website.

Also during this week’s meeting, the full commission is expected to take up rules for air permitting and wastewater design flow rates.

During the water quality committee meeting scheduled for 2:30 p.m. Wednesday, members are expected to hear a presentation of draft per- and polyfluoroalkyl substances, or PFAS, monitoring and minimization rules for industrial direct dischargers and significant industrial users.

A full agenda and related documents are available on the website.   

This post has been updated.

NEW BERN — The commission that makes decisions about coastal development is moving ahead with public comment on proposed language to reinstate Jockey’s Ridge protections previously in place for decades.

During the Coastal Resources Commission’s first meeting of the year, which was held Wednesday and Thursday in the DoubleTree New Bern Riverfront, members unanimously approved setting a public hearing for a proposed permanent rule that would restore the area of environmental concern designation for Jockey’s Ridge in Nags Head.

What is often referred to as the largest sand dune system on the Atlantic Coast, the geological feature is the centerpiece of Jockey’s Ridge State Park, which was established in 1975. The Coastal Resources Commission designated Jockey’s Ridge in 1984 as a “Unique Geologic Feature Area of Environmental Concern” and put laws in place to manage activities in and around the park boundaries.

Daniel Govoni, policy analyst with the Division of Coastal Management, reminded the commission Thursday afternoon that it must go through the permanent rulemaking process because, during the periodic rules review, the designation for Jockey’s Ridge was removed from the North Carolina Administration Code. The division acts as staff to the Coastal Resources Commission.

The Rules Review Commission dropped in October 2023 the rule language, along with 29 other rules, in large part because of the wording. The Rules Review Commission’s objections centered on what it described as a lack of statutory authority, unclear or ambiguous language, that it was unnecessary and failed to comply with the Administrative Procedure Act.

“As the CRC explained in its verified complaint objecting to the removal of its rules from the North Carolina Administrative Code, ‘the removal of the rules at issue deprives DCM of the ability to determine whether a permit is required or available to protect a fragile coastal natural and culture resource areas, placing in immediate danger the stability of natural sand dunes in the coastal zone due to improper sand removal and development, including at Jockey’s Ridge,’” a division representative explained Friday in an email about the effort to get the rules reinstated.

The commission last year adopted emergency and temporary rules reestablishing Jockey’s Ridge as an area of environmental concern. The commission went through the permanent rulemaking process, approved the fiscal analysis, held a public hearing and then adopted the permanent rule in November 2024.

In December, the Rules Review Commission objected to the permanent rule again, claiming that the division didn’t follow the rules for a public notice.

Govoni said the division has now complied with the public hearing rules and can move forward with the public hearing.

While work was underway to reinstate these protections, the Coastal Resources Commission had a lawsuit in the works against the Rules Review Commission about the 30 rules that were removed from the code in the fall of 2023.

Related: Judge restores state’s 30 erased coastal development rules

Wake County Superior Court Judge William Pittman ruled on Feb. 12, “in the light most favorable to Defendants, that there is no genuine issue as to any material fact and that Plaintiffs are entitled to judgment as a matter of law” and that the “Rules Review Commission is ordered to approve Plaintiffs’ 30 rules.”

The defendant was ordered to return the 30 rules to the code. If there is an appeal, the Rules Review Commission “can identify those rules as ‘Under Appeal’ or words to that effect.”

During the meeting Thursday afternoon, the Coastal Resources Commission’s legal counsel, Mary Lucasse, shared that the Rules Review Commission had decided to appeal but didn’t know the time frame. She said that the trial had been scheduled for March 10 but that it was later changed.

Reid Wilson honors Mike Lopazanski

The commission was able to take a quick break from the agenda Thursday morning to welcome North Carolina Department of Environmental Quality Secretary Reid Wilson and recognize former Division Deputy Director Mike Lopazanski with the Order of the Long Leaf Pine Award.

Commission Chair Renee Cahoon introduced NCDEQ Secretary Wilson, who she said “brings a wealth of experience in environmental protection, land conservation and government and nonprofit leadership.”

“I’ve been in this job for two months, and I’m loving it every single day,” Wilson told the commission, adding NCDEQ covers “everything from the coast to the mountains and in between.”

Wilson was on his way to Morehead City to visit the divisions of Coastal Management and Marine Fisheries headquarters there when he stopped in New Bern.

Wilson praised department staff for helping him transition to NCDEQ after serving from 2021 to 2024 as secretary of the state’s Department of Natural and Cultural Resources. Gov. Josh Stein appointed Wilson to the NCDEQ secretary position and is waiting to be confirmed by the Senate.

“The Department of Environmental Quality benefits every North Carolinian’s life, every single day, in a lot of ways,” Wilson said, explaining that the agency protects air quality, water quality and human health and helps advance economic prosperity by funding water infrastructure projects “and not only making sure that people have safe drinking water, but that our rivers are clean, and also building the capacity of the business to come and grow and for those communities to thrive.”

Wilson commended the Coastal Resources Commission members for their dedication to protecting the coast. “I think all of us view our coastal resources as this incredible treasure,” he said, “and you all play a key role.”

While Wilson had the podium, he presented Lopazanski with the Order of the Long Leaf Pine. Lopazanski retired in December as deputy director of the division after more than 30 years in state government.

“This is the state’s highest honor society, and it is a huge accomplishment,” Wilson said. He thanked Lopazanski for his work to coordinate key acquisitions for the N.C. Coastal Reserve and National Estuarine Research Reserve system, and with the Coastal Resources Commission “to adopt common sense and science-based rules. Thank you for your dedication to your job and to the coast and to the people North Carolina.”

Before Wilson and his staff resumed their trip to Carteret County, he told Coastal Review that while the two departments are similar in size, staff and number of divisions, a difference is that Natural and Cultural Resources has 100 sites around the state that it oversees, whether it’s the zoo, parks or historic sites, while NCDEQ has around 10 offices around the state and they’re offices or labs.

“But the other thing that’s different is that our work at DEQ affects everybody. Making sure the air and the water and the land are clean and healthy,” he said. “So our work is in every county, in every town, whether it’s a drinking water plant or Brownfields cleanup or a permit for a business to come in and create jobs.”

When it comes to the ongoing uncertainty that surrounds federal funding, Wilson said his people “don’t actually know yet” about any particular programs within the agency that will be impacted.

“Every day we’re monitoring whether we have access to these federal grants,” he said. “I can’t tell you which ones are available, but we’re checking it every day and waiting to see how the Trump administration responds to various court orders that would require the release of these funds.”

Also during the meeting

Members approved a variance request from at The Shoals Club on Bald Head Island for a sandbag structure double the size of the allowed 6 feet by 20 feet. Petitioners requested permission to build a 12-foot-by-40-foot sandbag structure at the site in Brunswick County that’s subject to erosion.

The other variance from a petitioner to build in the setback in North Topsail Beach was put on hold while more information is collected.

Amendments to two different rules for ocean hazard areas were approved as well as the periodic review schedule for the Coastal Area Management Act land use planning public comment and final report.

Nelson Paul, who petitioned for a rule to add to the definition of estuarine waters “All the waters’ described herein includes man-made ditches” but withdrew his request because he plans take a different approach.

The board heard during public comment on a proposed rule to allow hay bales be used as sand fencing concerns from an attorney with Southern Environmental Law Center and a biologist form the North Carolina Wildlife Resources Commission that the bales would impede sea turtle nesting and could introduce invasive species.

This story has been updated.

A judge has ordered that more than two dozen longstanding rules used to guide coastal development and protect resources be placed back into the North Carolina Administrative Code.

All 30 rules removed from the code in fall 2023, shortly after the N.C. Rules Review Commission kicked them back to the Coastal Resources Commission, must be plugged back into the code, Wake County Superior Court Judge William Pittman ruled last week.

Pittman also affirmed that the Coastal Resources Commission and Department of Environmental Quality have the authority to, through rulemaking, create enforceable guidelines and policies, adopt rules that give context to or aid in understanding those and other rules, and that “adverse environmental impact” is not an ambiguous term used in rulemaking.

“The NC Coastal Resources Commission is pleased that the trial court has agreed with its position that the Rules Review Commission’s objections to thirty of the CRC’s rules were without foundation,” the CRC stated in an email Tuesday afternoon. “The CRC looks forward to a return of its rules to the North Carolina Administrative Code as these rules are important components of this State’s coastal management program.”

Related: Process to restore Jockey’s Ridge protections continues

Should the Rules Review Commission appeal, the state codifier of rules may “prominently notate and identify as ‘Under Appeal’” the 30 rules “or words to that effect,” Pittman wrote in his Feb. 12 decision.

Pittman’s ruling comes more than a year after the coastal commission and the state’s lead environmental agency filed a complaint asking the court to resolve a deadlock over legal interpretations between the two commissions and restore the rules.

The coastal commission adopts rules for the state’s Coastal Area Management Act and Dredge and Fill Act, and establishes policies for the North Carolina Coastal Management Program.

The Rules Review Commission’s objections to the rules in 2023 were largely based on technical wording.

After filing the lawsuit, the Department of Environmental Quality’s Division of Coastal Management and the coastal commission worked to temporarily restore 16 of the rules division officials described as critical to day-to-day operations.

Some of those rules pertain to enforcing protections for coastal landmarks including Jockey’s Ridge State Park in Nags Head and Permuda Island off the shores of North Topsail Beach in Onslow County.

Last November, the 13-member Coastal Resources Commission unanimously adopted a proposed permanent rule identifying Jockey’s Ridge, the tallest active sand dune on America’s eastern sea board, as a unique geological feature area of environmental concern, or AEC. The designation received overwhelming public support and protects the dune from, among other things, sand mining.

AECs are areas of natural importance that the division designates to protect from uncontrolled development.

The coastal commission submitted 132 readopted rules to the Rules Review Commission.

Historically, when the Rules Review Commission objected to a rule, the agency that submitted the rule had to request the rule be returned to make changes. If an agency did not make that request, the objection would be merely noted in the rule and that rule would remain in the Administrative Code.

That changed with the adoption Oct. 3, 2023, of the state budget that includes language giving the rules commission authority to send rules it objects back to agencies.

Shortly after the law went into effect, the Rules Review Commission voted in a special called meeting to return 30 of the Coastal Resources Commission-approved 132 rules.

The 10-member rules commission reviews and approves state agency-created rules. The North Carolina General Assembly appoints commission members, half of which are on the recommendation of the Senate pro tem, and the other half on the recommendation of the House speaker.

“The court did the right thing in reserving the legislatively-controlled Rules Review Commission’s arbitrary repeal of long-standing, common-sense rules that are essential to North Carolina’s coastal communities as they face increasingly intense storms and sea level rise from climate change,” Southern Environmental Law Center Senior Attorney Julie Youngman stated Monday afternoon in response to a request for comment.

The law center filed an amicus brief on behalf of the North Carolina Coastal Federation, which supported restoration of the rules. The Coastal Federation publishes Coastal Review.

In addition to protecting Jockey’s Ridge State Park and archaeological remains on Permuda Island, the rules the judge ordered to be returned to the code designate and manage categories of coastal resources, dictate policies for shoreline erosion control and development of ocean-based energy facilities, and guide permitting for coastal development.

Thorough research needs to be done on how wheat straw bales might affect oceanfront habitat before the state allows them to be used as an alternative to sand fencing, a state wildlife official said.

The North Carolina Wildlife Resources Commission has repeatedly stated its concerns in recent years about straw bales being used as a tool to protect and build up oceanfront dunes, Maria Dunn said in a recent meeting of the state Coastal Resources Commission.

Dunn, who is with Wildlife Resources Commission’s Habitat Conservation Program, said that the agency understands the desire to try and maintain shorelines, but pointed out what she said are “significant differences” between traditional sand fencing and bales.

“We have not objected to traditional use of sand-fencing material as long as installation was done in a manner to effectively collect wind-blown sand and not impede or block areas of the shore for public use and wildlife habitat,” Dunn said at the coastal commission’s Nov. 13 meeting. “Appropriate installation includes the location along the appropriate area of the beach profile, orientation and alignment of fencing, distance between fencing, and length of fencing down the beach profile.”

The proposed rule change the coastal commission approved in April establishes specific guidelines for where and how bales may be placed on a beachfront.

But the potential impacts to shoreline habitat and the animals, including endangered species and plants, that rely on that sandy habitat, remain grossly understudied, Dunn said.

“It was asked if research was available on how bales impact wildlife resources on habitats on ocean shorelines,” she said. “But since they are not permitted on any other Atlantic shoreline’s state shore there is no research or data available to share with you.”

The rule amendment was introduced as a way to help save permittees from waiting for sand fencing to become available during times when it is in high demand.

But unlike traditional sand fencing, straw bales could potentially introduce invasive and nonnative ocean shoreline plant species to shores, influence sand temperatures and, when initially installed, take up 48 times the area that traditional sand fencing uses, Dunn said.

Under the proposed rule amendment, bales cannot be placed in sections more than 10 feet long, 2 feet wide and 3 feet high and ties or binding must be removed from the bales. A permittee must repair or remove damaged, nonfunctioning, or bales sections or stakes moved from the alignment in which they were authorized.

Only local governments, state and federal agencies and large, oceanfront homeowners associations would be permitted to use bales.

A state Division of Coastal Management official told the Coastal Resources Commission in August that the division does not expect a significant uptick in the use of straw bales because they tend to cost more than traditional sand fencing, would need to be replaced more frequently than fencing, and the verdict is still out on how efficiently bales trap sand.

Ocean Isle Beach became the first in the state to test straw bales on a portion of its ocean shore in 2023.

Ocean Isle Beach Mayor Debbie Smith told Coastal Review in late August that the bales worked well, were cheaper than sand fencing and easily accessible during a time when the town could not get sand fencing because of high demand.

Dunn said that the town’s pilot program was monitored by little more than photographic documentation and some surface temperature readings.

There was no designed, controlled experiment comparing different bale installments to traditional sand fencing to see which application best collected windblown said, she said.

“We would recommend that such an experiment is designed with input from state and federal agencies to determine the best type of sand management tools to collect sand for dune structure while minimizing impacts to wildlife resources,” Dunn said.

Smith said in a telephone interview Tuesday afternoon that she never saw a Wildlife Resources Commission representative visit the island to check sand temperatures at turtle nests or conduct other monitoring.

“On any decision we have to make we can always say ‘what if,’” Smith said. “She has no evidence of some of those what-ifs. I don’t think anybody wants to do any environmental damage.”

The town is working on a dune project that will begin sometime this winter. Since the proposed rule amendments have not been made formative, the town has opted to use traditional sand fencing “to move our project along and get it permitted,” Smith said.

Sand temperatures play a significant role in determining the sex of sea turtles in a nest. Dunn said that a half-degree variation can change how many males or females are within a nest and possibly whether a nest remains viable.

Temperatures were not taken at sea turtle nest cavity depths in Ocean Isle Beach, she said.

“We don’t want to artificially create more females,” said Deb Allen, Ocean Isle Beach Sea Turtle Protection Organization coordinator. “We need a balance of males to females.”

Allen pointed to studies that show when nests incubate at higher temperatures it can affect the physical and cognitive abilities of hatchlings, slowing them in their ability to make it from the shore to the ocean.

“We want them to come out of that nest and we want them to crawl to that ocean as fast as possible,” she said.

The coastal commission in August unanimously approved the fiscal impact analysis of the proposed rule. The fiscal analysis measures how a rule may affect a government’s revenue and expenditures to help prepare for or prevent budget shortfalls.

The North Carolina Department of Environmental Quality, or DEQ, and Office of State Budget and Management also approved the fiscal analysis.

A public hearing on the proposed amended rule was held Oct. 30 in Morehead City. The public comment period on the rule ends December 2.

The division has not yet received comments from the U.S. Fish and Wildlife Service, according to its public information officer, Christy Simmons.

The wildlife service did not respond to a request for comment in time for publication.

Division officials anticipate that the amended rule will become effective April 1, 2025.

Topsail Island towns and their counties have joined forces in asking state legislators for a moratorium on shellfish leases in their waterways.

The Pender County Board of Commissioners last week adopted a resolution calling for the state to pump the brakes on issuing new shellfish lease permits, particularly water column leases, in Pender and Onslow counties.

Pender commissioners were the last of five elected boards to approve the resolution, an idea of which was first circulated back in August by the Topsail Island Shoreline Protection Commission, or TISPC.

The commission, which is made up of elected officials and local government appointees from the island’s three beach towns – North Topsail Beach, Surf City, and Topsail Beach — and Onslow and Pender counties, functions as a collaboration to preserve the barrier island’s beaches and surrounding waterways.

Moratoriums in waters north and south of Onslow and Pender counties are driving up demand for aquatic business activities in those counties, affecting recreational fishing, use of small watercraft by tourists, “and is impacting the beauty of a marsh area that did not have the plastic poles and other equipment marking shellfish areas,” according to a letter the commission’s former chair emailed to North Topsail’s town manager.

While the commission is in favor of shellfish farming, limits should be placed on the types and density of leases, the letter states.

North Topsail Beach Mayor Pro Tem and Topsail Island Shoreline Protection Commission Vice Chair Mike Benson said during an Oct. 2 town board meeting that there are about 30 existing leases in waters behind Topsail Island.

“Density is increasing,” he explained. “There’s conflict now between recreational boaters and tourism and commercial aquaculture. We’re not restricting the number that are already in place. Those will continue on as they have in the past. All we’re asking for is there’s a pause to figure out what the next step is. But, we shouldn’t be the ones that are suffering here in terms of tourism and boater access and recreational activities because of interference of these shellfish leases, particularly column leases.”

Locals spoke out against water column leases proposed for just under a dozen acres in Pender County in a public hearing hosted early this year by the North Carolina Division of Marine Fisheries.

A majority of those who spoke argued that additional leases in the waters near Topsail Island would infringe upon popular fishing spots, impede boating and kayaking access, affect the viewsheds of waterfront properties near the farms, and may affect water quality from birds roosting on floating equipment.

Unlike bottom leases, where shellfish farming gear must be placed on or within 18 inches of the waterbed, equipment used in a water column lease cannot rest on the bottom or extend more than 18 inches above the bottom. Water column leases are required to be installed over bottom lease areas.

The division, which oversees shellfish lease permits, denied those water column lease applications.

The North Carolina General Assembly in 1989 enacted law that allows shellfish leases in the water column. Today, there are more than 150 water column leases along the North Carolina coast.

The legislature enacts nearly all regulations on shellfish leases and it implements shellfish lease moratoriums.

“Any stipulations on what can and can’t be addressed in a moratorium is up to the legislature,” Marine Fisheries Public Information Officer Patricia Smith said in an email earlier this month.

Brunswick County’s shellfish lease moratorium dates back originally to 1949. A moratorium in Core Sound was established in 1993. In 2019, moratoria were placed in New Hanover County and in Bogue Sound.

During the public hearing on the proposed leases in Pender County, a North Carolina Shellfish Growers Association representative advised residents to talk to their local and state elected officials about getting moratoriums lifted in waters south of Pender County so growers will have more areas in which to farm.

BEAUFORT — The state Coastal Resources Commission is pushing ahead a proposed rule change to allow wheat straw bales to be placed on ocean shores as a means of protecting dunes.

The commission, which adopts rules and policies for coastal development in North Carolina, on Wednesday unanimously approved the fiscal impact analysis of the proposed rule during its quarterly meeting.

The fiscal analysis, which measures how a rule may affect a government’s revenue and expenditures to help prepare for or prevent budget shortfalls, has also been approved by the North Carolina Department of Environmental Quality and Office of State Budget and Management, or OSBM

The proposed rule change may save local governments, state and federal agencies and large, oceanfront homeowners associations, or HOAs, the headache of waiting for sand fencing to become available during times when it is in high demand, according to Heather Coats, Division of Coastal Management, or DCM, beach and inlet project coordinator.

But the division does not expect a significant uptick in the use of straw bales, she said, because they tend to cost more than traditional sand fencing, would need to be replaced more frequently than fencing, and the verdict is still out on how efficiently bales trap sand.

The cost for a 10-foot section of wheat straw bales ranges between an estimated $30 to $72, according to information gathered by DCM staff with input from the OSBM. A 10-foot section of traditional sand fencing costs an estimated $12 to $24.

Commissioners approved the proposed rule change at their April meeting.

Only local governments, state and federal agencies and large, oceanfront HOAs are permitted to use straw bales under the proposed rule, which includes additional review requirements by wildlife agencies because little is known about their potential impact to nesting sea turtles.

Under the proposed rule, bales cannot be placed in sections more than 10 feet long, 2 feet wide and 3 feet high. A minimum of 7 feet must be between each section. Ties or binding have to be removed from the bales.

Ocean Isle Beach became the first in the state to test whether straw bales might be an effective alternative to sand fencing after the Coastal Resources Commission last year granted the town a variance allowing straw bales to be placed at six areas on the eastern end of the Brunswick County island.

Ocean Isle Beach Mayor Debbie Smith told Coastal Review in a telephone interview Wednesday afternoon that the bales have “worked well,” were cheaper than sand fencing and easily accessible during a time when the town could not get sand fencing because of high demand.

“Most of them covered up fairly quickly,” she said. “In my opinion, it’s more environmentally friendly.”

This fall the town will begin a dune construction project along the east end of the ocean shore from the area of High Point Street to the east of the East Fourth Street beach access, shortly beyond the terminal groin.

Smith said town officials have not decided whether to use straw bales or sand fencing once construction, which will include vegetating the dune, is complete.

“Today we have no project planned to do either one, but when we get through hurricane season that may change,” she said.

The proposed rule change will now go to a public hearing. If it receives final approval, Division of Coastal Management staff anticipate that the rule amendment would become effective April 1, 2025.

The coastal commission also tackled other rulemaking measures on Wednesday, one of which also pertains to Ocean Isle’s dune construction project.

That proposed rule will align with a law passed earlier this year by the North Carolina General Assembly that allows any beach towns that receives a permit to build a terminal groin to establish a measurement line for dune building projects.

The line would “represent the existing location of the first line of stable and natural vegetation” included in a dune building and beach planting project, according to the division.

The current rule establishes a line from where the ocean hazard setback is measured for a stretch of unvegetated beach.

Under the proposed rule, the line would have to be set in coordination with the division, be applicable for no less than two years after a project’s completion, and would apply in areas of a beach significant impacted by erosion and overwash from a storm.

The commission’s approval of this rule as “temporary” allows Ocean Isle Beach to move forward with its dune construction project. Division staff recommended the commission adopt the rule as permanent.

Commissioners also approved pushing ahead with making permanent a rule that deals with general permitting for bridge and culvert replacements in estuarine waters.

Cathy Brittingham, division transportation project coordinator, explained that a rule pertaining to the Coastal Area Management Act general permit for replacing bridges and culverts was mistakenly changed a couple of years ago.

As it stands, the permit has a 120-day expiration date, well below the time it takes to replace a bridge.

The proposed rule amendment would reinstate the expiration date of two years and would require an applicant, which in these cases are predominately the North Carolina Department of Transportation, to provide a project narrative and dates plats of existing and proposed developments in an application.

The commission also approved amending a rule to allow a property owner to rebuild docks and piers damaged or destroyed in storms, fire, or normal deterioration to its pre-damaged condition without having to obtain a CAMA permit.

The General Assembly earlier this summer passed a law setting forth this rule. The permit exemption does not apply to docks and piers wider than 6 feet, larger than 800 square feet, or those adjacent to a federal navigation channel.

Once rules are adopted by the coastal commission as permanent, those rules then go to the Rules Review Commission.

The Rules Review Commission last October objected to 30 of the coastal commission’s longstanding rules, a move that subsequently got the rules removed from the state Administrative Code.

In March, the coastal commission re-adopted more than a dozen of those rules coastal management officials said are crucial to day-to-day operations as temporary as a means to get them back into the code for one year or until they are reinstated as permanent.

The coastal commission and DEQ filed a lawsuit against the rules commission. That lawsuit is ongoing.

Note: Coastal Review will not publish Monday in observance of Labor Day.

Update: The Division of Coastal Management announced late Wednesday afternoon that it had been granted an extension to review NOAA’s federal consistency submission on proposed amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule. The comment period was scheduled to end at 5 p.m. Wednesday but has been extended to 5 p.m. Aug. 31.

Original post:

When it was veterinarian Dr. Craig Harms’ turn to speak during a public meeting Tuesday on the proposed speed rule to reduce North Atlantic right whale mortalities, he recalled being “waist-deep” while doing a post-mortem exam to determine what caused a stranded whale to die earlier this year.

He was one of the 19 who spoke during the public comment meeting the North Carolina Department of Environmental Quality’s Division of Coastal Management hosted in the Crystal Coast Civic Center.

Harms has been the director of the marine health program at N.C. State University’s Center for Marine Sciences and Technology, or CMAST, in Morehead City since 2000.

Harms explained during his allotted three minutes that he is involved in mammal stranding organizations and takes part in the post-mortem exams, or necropsies, of mammals that wash up on the beach.

Of the 41 dead right whales that have washed up since 2017, half of the mortalities were caused by vessel strikes, he said.

Over the last few years, the National Oceanic and Atmospheric Administration has been going through the rulemaking process to amend the existing North Atlantic right whale vessel strike reduction rule, “to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel strikes, which are a leading cause of the species’ decline and a primary factor in an ongoing Unusual Mortality Event.”

State accepting public comments

The Division of Coastal Management staff is tasked with determining whether the proposed changes are “consistent to the maximum extent practicable with the enforceable policies of North Carolina’s Coastal Management Program,” according to its website.

As part of that, the division has been accepting public comments for the last month. The public can still submit comments. The deadline as of Friday afternoon is 5 p.m. Wednesday. However, division leadership asked NOAA for a deadline extension to allow more people to comment and were waiting for response as of deadline for this report.

Details on how to submit are on the NCDEQ website.

A division representative told Coastal Review that the state invites the public to review and comment on the proposed federal actions as part of the review process.

“These comments will be considered in developing the State’s federal consistency response to NOAA,” they said.

Division Federal Consistency Coordinator Daniel Govoni started the meeting by explaining to the roughly 30 attending that NOAA’s National Marine Fisheries Service had submitted to the state a federal consistency determination for the proposed amendments. This is a requirement for federal agencies that propose an activity that can affect a coastal resource or coastal use.

“The proposed actions include modifying the boundaries and the timing of seasonal speed restrictions of 10 knots or less to better align with areas characterized by the elevated collision or related mortality risks. It also will create a dynamic speed zone that will program to implement temporary mandatory speed restrictions when whales are known to be present,” he said. “This will be applied and also extend the size of the threshold of regulated vessels to include all vessels, or most vessels, 35 feet or greater in length. They will also update the speed fuel safety deviation provision.”

Currently, the rule states that most vessels 65 feet or longer must travel at 10 knots or less in certain areas along the East Coast during certain times of the year. For North Carolina, those areas are around Morehead City and from Wilmington to the South Carolina line, and the time of year is Nov. 1 through April 30.

With the proposed change, the rule would apply to a section of the northern Outer Banks Nov. 1 through May 30 and from Nov. 1 to April 30 for the rest of the North Carolina coast.

In addition to educators like Harms, commercial watermen, educators, conservation organization representatives, college students and researchers took the podium.

Some were in support of the speed reduction rule and some were against, but all spoke with conviction, and there was a handful of folks who appeared to misunderstand the role the division plays in the federal rulemaking process.

The speakers in support of the rule noted how critically endangered the north Atlantic right whale is as a species.

“So, what do we know about the North Atlantic right whales?” asked Penny Hooper, on behalf of the North Carolina Sierra Club, during her public comment.

They are one of the most endangered whales on the planet, with only an estimated 360 remaining whales are in the entire population. The 2008 vessel speed rule is meant to just slow vessels near the North Atlantic right whale to prevent devastating strikes that result in injuries and deaths. In 2022, NOAA proposed an update and protect these whales, she explained.

“What we have to think about is how critical it is to save this population,” Hooper said.

Many of the commercial watermen in attendance who were vehemently opposed to the rule change cited economic concerns.

Patrick Kennan of Morehead City called it “just a ridiculous rule” that will “affect more than the guy who owns the boat,” it will affect a lot of people all up and down the East Coast.

The North Carolina Marine Fisheries Commission also voiced its concerns with the rule in a letter to NOAA that it decided to send during its May meeting.

“While we fully support the protection of the critically endangered North Atlantic Right Whale, we have apprehensions about the potential impacts of these amendments on North Carolina’s fishing and boating communities,” according to the letter dated July 10. “The proposed changes could negatively affect the charter fishing industry, recreational boaters, the commercial fishing industry, and other marine operations in our state. We urge NOAA Fisheries to consider these potential impacts carefully and to continue engaging with local stakeholders to ensure that the regulations balance whale conservation with the economic and operational realities faced by our communities.”

‘Blunt-force impact’

Harms, who has spent his career studying marine mammals, told Coastal Review Thursday that his most recent experience with a right whale postmortem exam was in April. The whale was found dead offshore of the Virginia-North Carolina border and towed to shore in Virginia Beach for examination by a multi-state and multi-institution team.

“I was thinking specifically about this case when I mentioned being waist-deep in whale innards during my public comments. This whale had lower back vertebrae the size of a beer keg that had been shattered by blunt force impact, despite all of the thick blubber and muscle surrounding and cushioning them,” he said.

There are only about 360 right whales left in the world. Since the North Atlantic right whale unusual mortality event was declared in 2017, there have been 142 known cases, including 41 dead, 35 seriously injured,and 66 were slightly less than lethally injured or ill individuals.

“Of the 41 confirmed dead whales, 19 were first documented in the United States, and 22 were first documented in Canada. This does not account for offshore undetected injuries and deaths,” Harms said.

There were 24 confirmed, probable or suspected deaths as a direct result of human interaction out of the 41 whales. There were nine entanglements, 15 vessel strikes, three due to unknown causes, two perinatal deaths, one cause of death is pending, and 11 carcasses were not examined.

“It is not a simple task to retrieve a 10- to 20-ton dead animal for a postmortem examination. Nor is it a simple task to determine cause of death if they have been dead for any length of time that they decompose so much that they bloat and expel their stomachs out of their mouths. So ‘unknown’ is not due to lack of effort,” he explained.

Harms said these proposed rule changes could be a step in the right direction for right whales and other whales, including humpbacks, that suffer from ship strikes.

“But they will only help if there is compliance and enforcement, and reasonable loopholes aren’t exploited as a universal free pass. For instance, not every naval vessel transit of the Chesapeake Bay mouth is critical to national defense,” he said.

Harms said that he truly did appreciate hearing the perspective of charter boat captains and the challenges they face that are inherent in complying with speed limits.

“Although they didn’t acknowledge the seasonal or area restrictions attempting to reduce economic impacts, speed restrictions clearly will affect their livelihoods. I don’t have 100% win-win solution to offer,” Harms said.

One of the speakers at the public meeting alluded to offshore wind energy development being more responsible for the ongoing unusual mortality events of right whales, humpback whales and minke whales than vessel traffic, Harms noted.

“The wider geographic and time range of these unusual mortality events do not coincide with what is so far more limited scope of wind energy development,” Harms said. “There are justifiable concerns about potential impact of offshore wind energy development offsetting the critical need of addressing climate change impact of our current energy portfolio, but as of now, we know that vessel strikes and gear entanglements are far and away the primary causes of whale deaths along the US and Canada east coast, and we are not adequately addressing these known threats now, before worrying about potential future threats.”

Correction: This story originally reported that Cooper had vetoed the bill.

Gov. Roy Cooper late Monday afternoon declined to sign a bill that includes granting a state regulatory agency’s request to delay new mandatory catch-reporting rules for recreational anglers and commercial fishermen.

The decision was over unrelated provisions that Cooper described as an “unconstitutional power grab.”

A paragraph tucked into Senate Bill 607, the 2024 version of the legislature’s annual regulatory reform measure, pushes the start of the coastal fisheries harvest-reporting system back one year, making the effective date Dec. 1, 2025.

The bill, which is now a law, also includes terminal groin language for Bald Head Island.

Shortly before 7 p.m. Monday, Cooper’s office announced in a release that the governor declined to sign the bill and veto Senate Bill 445, the latter of which pertains to court documents and proceedings.

Cooper’s statement noted that the regulatory reform bill includes “some important changes that should become law, however I am not signing this bill because there is a provision where the General Assembly is seeking to interfere with the charter and bylaws of the North Carolina Railroad, a private corporation. This isn’t about improving transportation for the people of North Carolina, it’s just another unconstitutional power grab by Republicans. Article VIII of the North Carolina Constitution protects private businesses from this type of legislative interference in their internal governance.”

Seeking more time

North Carolina Division of Marine Fisheries officials had asked lawmakers for more time to roll out the phased enforcement of the rules, which will require recreational coastal anglers to report harvests of flounder, red drum, speckled trout, striped bass and weakfish.

“Delaying the effective date of the mandatory harvest reporting rules by one year allows the Division of Marine Fisheries (DMF) the time to better inform stakeholders and conduct outreach and awareness around the new requirements,” Christy Simmons, Division of Coastal Management public information officer, said in an email.

The temporary rules, which must be approved by the state Rules Review Commission, were adopted June 6 by the Marine Fisheries Commission and the Wildlife Resources Commission.

Those commissions had to comply with a law the General Assembly enacted last year that detailed which species recreational anglers will be required to report and an enforcement timeline.

The law also requires commercial fishers to list on their trip tickets all catch, including finfish, shellfish and crustaceans, that they do not sell to a dealer. Dealers submit those forms each month to the state, which uses the information reported on the tickets as a means to help manage fisheries resources.

The new reporting mandate was suggested by a relatively new nonprofit called the North Carolina Marine & Estuary Foundation with the support of the North Carolina Fisheries Association, which represents commercial fishing interests, and the state chapter of the Coastal Conservation Association that represents recreational anglers.

Foundation Executive Director Chad Thomas has said the foundation supports the division’s request to push back the effective date of the law. He has said the law is meant to bring together two state agencies that have a history of conflict over their shared management of joint fishing waters, fill gaps left by federal reporting surveys, and make North Carolina a pioneer in coastal fish data management.

Under the law, the rules will be enforced in phases over three years.

The bill includes language that pushes the date of when the rules will become effective to Dec. 1, 2025, after which time a fisher caught not complying will receive a verbal warning.

Full enforcement of the law takes effect Dec. 1, 2027. Offenders of the law will be punished with a $35 fine per violation. Repeat offenders will face the threat of license and permit suspensions.

The new reporting mandate will not replace the Marine Recreational Information Program, or MRIP, which is a multi-governmental program that uses recreational fishing surveys to estimate total recreational catch.

Upward of 1 million recreational anglers fish state waters any given year, according to fisheries officials.

The mandate has been met with fierce criticism from opponents who argue the rules are unenforceable, unnecessary bureaucracy and government overreach, and question the accuracy and reliability of report collection.

Concerns also have been raised that the law does not include catches and releases of the five species be reported.

Anglers will be given the option to report their harvest by scanning a QR code or by going directly to the division’s website. Printed report cards will be placed in bait and tackle shops and other areas for anglers who do not have smartphones or are in areas that do not have cell phone service.

Anglers will be required to provide their fishing license number or first and last name, ZIP code, the types and numbers of species harvested, length of each fish, the area in which those fish were harvested and the gear used to harvest them.

Details of the reporting process may be found on the division website.

It’s unlikely anglers will be required to report flounder harvests this year because the Marine Fisheries Commission does not plan to open its recreational flounder season for 2024.

Related: No recreational flounder season likely this year; here’s why

Wildlife Resources Commission has proposed closing this year’s flounder season for inland waters. The public comment period on the commission’s proposed temporary rule for the 2024 season closed Friday.

The commission’s next scheduled meeting is July 25.

Bald Head Island could be the first beach town in the state to have two terminal groins now that the North Carolina General Assembly has amended the law that governs the number of such structures allowed on the state’s coastal shores.

Village officials were quick earlier this week to say that Senate Bill 607 gives them the option to pursue a study on whether a terminal groin would be a viable method of controlling chronic erosion at the east end of the island’s south beach.

Whether the village will move forward with such a study remains to be seen as the bill, which was ratified Friday, awaits Gov. Roy Cooper’s decision to sign, veto or let the bill become law.

Bald Head Island Village Mayor Peter Quinn on Monday sent an email to island property owners explaining why village officials had requested the change in the law, what the change means for the village and next steps.

“Such projects are very expensive and take years,” Quinn wrote. “The Village would not undertake such a study without any basis for a helpful solution. Any structure would be subject to extensive design, environmental study, public input, and state and federal permitting.”

A terminal groin has not been designed, planned or proposed, he wrote, and a multi-year investigation into whether such a structure would keep erosion at bay “will not be rushed.”

A terminal groin, as defined by bill, is one or more structures constructed at the terminus of an island or on the side of an inlet, or where the ocean shoreline converges with Frying Pan Shoals.

“Work to find a viable, financially responsible long-term answer needs to be environmentally sound,” Quinn stated. “Our community has, and hopefully always will, embrace the role of a steward whose actions are in harmony with its natural surroundings. We depend on this mutual idea and agents like the Conservancy to keep us on course.”

He is referring to the Bald Head Island Conservancy, an environmental and educational nonprofit that has publicly opposed the change to the law.

Last month, Bald Head Island Conservancy Executive Director Chris Shank was invited to make a presentation to the village council in which he argued whether a hardened structure would control the movement of sand on the east end of south beach, an area where sand is shifted by storms, which are unpredictable in frequency and strength.

Shank said in an email Monday afternoon that the conservancy was “very disappointed” legislators had passed the law, which also gives the village the option to explore replacing a series of fabric, sand-filled tubes on the west end of south beach with rock structures.

“I don’t believe the Village of BHI leadership or the NC legislators appreciate the monumental shift in approach to managing and protecting NC’s spectacular barrier islands that this legislation could bring,” he wrote. “Our barrier islands have always been one of our state’s most special resources, including our dynamic cape system whose constantly changing sands bring awe and wonder to those who experience them. Further, I doubt that North Carolina citizens want to armor their beaches to protect a limited number of private properties in the short-term in exchange for potentially much longer-term negative impacts to the rest of our beaches. I wish the Conservancy along with our research partners in the coastal physics and engineering fields had been offered the opportunity to discuss the potential consequences of this legislation with those who crafted and voted upon it. Then, at least, this baseline shifting decision would have been given the respect that it deserved for the citizens of Bald Head Island and throughout North Carolina.”

Bald Head Island was the first North Carolina beach community to build a terminal groin after the General Assembly repealed a decades’ old law prohibiting hardened shoreline erosion control structures on North Carolina’s coast.

The 2011 law authorized the Coastal Resources Commission to permit the construction of no more than four terminal groins under a pilot program. Legislators would later add that two additional terminal groins may be permitted. Senate Bill 607, if approved by the governor, will up the allowable number of terminal groins that may be permitted to seven.

Bald Head Island and Ocean Isle Beach are the only towns that have built terminal groins.

Village voters in 2014 overwhelmingly passed an $18 million bond to secure funding to build a 1,300-foot-long terminal groin at the western end of south beach, an area where the widening and deepening of the entrance to the Wilmington Harbor channel exacerbated sand loss.

“Changes in the island’s morphology at Frying Pan Shoals over the past few years have seen dramatic erosion and loss of beach habitat and property on the east end of South Beach,” Quinn stated in his letter to property owners.

The village spends anywhere from $1 million to $2 million about every five years to replace the cloth sand tube groin filed at south beach, he said. That groin field has been there since 1995.

“Replacing the cloth tubes with rock structures would save substantial public funds,” Quinn wrote. “These are not new or disappearing conditions.”

Village Manager Chris McCall described the tubes as, on average, stretching about 300 feet long.

Those tubes have proven to slow the rate of sand flow, he said. The law specifies that the field of rock structures may be groins, including T-head or lollipop groins, or breakwaters. The rock structures cannot be larger than the existing cloth tubes or greater in number.

These structures would have to be approved by the Division of Coastal Management or by variance from the Coastal Resources Commission.

Quinn said the village will dedicate a page on its website to keep property owners updated on its analysis of potential erosion control methods on the beach and when the public can provide input.

Note: Coastal Review will not publish Thursday in observance of Independence Day, a federal holiday.

Storms largely drive sand movement along the Bald Head Island beachfront and sand is being lapped away at the east end, where village officials are considering building a terminal groin to keep erosion at bay.

The unpredictability in the frequency and strength of those storms were among several points of concern raised by the Bald Head Island Conservancy last week over the prospect of additional hardened erosion control structures on the Brunswick County island’s shores.

“So, we’re going to try and control something, which we don’t even know how to predict the future of, and we’re going to try and put something there that says we know what it’s going to do?” Chris Shank, executive director of the Bald Head Island Conservancy, recently asked the village council. “It’s not an easy system to understand. To think, if we put something in the way, can you block sand in that area for a little while? You probably can for a little while. How long will it last? We don’t know that.”

Shank was invited to make a presentation to the village council during its meeting Friday, wrapping up a week when legislation was introduced that would allow the village the option to add a second terminal groin to its shoreline and replace a series of fabric sand tubes with a field of rock structures.

Related: Bald Head Island seeks to change hardened shorelines law

The proposed revision to a statute that lays out the rules for the construction, funding and number of terminal groins permitted on the North Carolina coast bumps the total of allowable hardened erosion control structures from six to seven.

Language added to the law went last week before the Senate judiciary committee, which is expected to take it up for further discussion this week. That language defines a terminal groin as one or more structures constructed at the terminus of an island or on the side of an inlet, or where the ocean shoreline converges with Frying Pan Shoals.

This would give the village the option of building what it describes as a field of rock structures that would replace fabric sand tubes installed along the west end of south beach and a terminal groin at the east end of south beach. The sand tubes have to be replaced every few years.

A state-permitted sandbag revetment installed by a private country club known as The Shoals Club protects it from the encroaching ocean at the east end of the south-facing beach.

Shank played a video of a female sea turtle lumbering under the cover of night along the beach to the sandbag wall. With no place to dig a nest, she eventually turned around and headed back to sea, he said.

“We don’t want something like that to be a long-term measure, especially not in this area,” Shank said, adding that the sandbags are analogy for how rock structures might affect nesting sea turtles.

“We’re sharing the island with our wildlife and, look, I’m not unrealistic about the fact that we have massive erosion in that area. I get that. But we have to be smart about the future.”

Bald Head Island’s beach is federally designated critical sea turtle habitat.

The soft tube groin field rests on the opposite end of the south beach from the 1,300-foot-long terminal groin the village had constructed nearly 10 years ago. The groin, a wall-like structure built perpendicular to the ocean shoreline, is designed to stop the movement of sand.

Bald Head Island was the first to build a terminal groin after the North Carolina General Assembly repealed a 30-year ban on such hardened erosion control structures on the state’s ocean shores.

Bald Head Island Mayor Peter Quinn made clear last week that village officials have not determined whether they want to go the route of having additional hardened structures on the island’s beachfront.

“It needs to be studied before anything is acted on, and this is a step toward making sure that it’s even a possibility before we do anything,” he said. “We’re working with the conservancy. This isn’t something we’re trying to steamroll or anything.”

Shank cautioned council members that, should they decide against building groins at the east end of south beach and the bill amendment passes in Raleigh, the door is opened for a future council to do so.

“I know that there’s a process involved, but it’s complicated,” he said. “By having this legislation passed you have created a pathway for somebody else to walk through and that is a major concern,” he said. “Once that pathway’s open, then what?”

The conservancy is a nonprofit organization that sponsors and facilitates coastal scientific research and offers recreational and educational activities to the public.

Shortly after Shank’s presentation, village council members approved a contract with Marinex Construction of North Carolina Inc. to place more than 1 million cubic yards of sand onto shore at the terminal groin fillet and the east end of south beach. That project is expected to begin later this year.

The village is sending out another round of bids for a project to replace the soft groin tubes on the east end.

North Carolina Wildlife Resources Commission officials have proposed closing this year’s flounder season for inland waters, and are asking for feedback from the public.

The closure was proposed to be consistent with the N.C. Marine Fisheries Commission’s plan not to open its recreational flounder season in coastal waters for 2024.

While Marine Fisheries has not announced when the commercial flounder season will be, Wildlife Resources officials are disappointed that it plans to open one.

Wildlife Commission Chairman Monty Crump wrote in a letter dated June 10 to Fisheries Commission Chairman Rob Bizzell that when the Wildlife Commission met June 6, “commissioners expressed their distaste for closing the recreational season while the commercial season remains open. They ultimately voted to notice temporary rule text for a closed flounder season so that the WRC could receive public input. If that input comes back in opposition as I imagine it will, I do not think there will be enough votes, if any, to pass a closed season.”

This isn’t the first time that recreational flounder season has caused conflict between the two agencies. Last year, for the first time in at least a decade, the recreational flounder seasons for coastal and inland waters did not align, causing confusion for recreational fishers, especially in the joint waters that both agencies manage, and drawing attention to an impasse between the two.

Last year, Wildlife Resources allowed a daily catch of four flounder, each no smaller than 15 inches, between Sept. 1 and Sept. 14. Marine Fisheries’ recreational season was Sept. 15-30 and allowed just one fish longer than 15 inches per day.

Wildlife officials are asking for public comment on the temporary rule for 2024, “Flounder shall not be taken or possessed.” Comments can be submitted until July 5 through an online form; by email to regulations@ncwildlife.org and including name, county and state; or by mail to Rulemaking Coordinator, 1701 Mail Service Center, Raleigh, NC 27699-1701.

A virtual public hearing is scheduled on the proposed amendment for 7 p.m. Wednesday, June 26, and an in-person hearing at 7 p.m. Thursday, June 27, at Craven Community College in New Bern. Registration is required for the online meeting.

The Division of Marine Fisheries announced that the Marine Fisheries Commission determined during its quarterly meeting May 23 not to open recreational flounder for 2024 “to preserve the southern flounder resource.”

According to the division, “Estimates from 2023 indicate the recreational catch exceeded the quota allowed under a stock rebuilding plan that was included in Amendment 3 to the Southern Flounder Fishery Management Plan and adopted by the N.C. Marine Fisheries Commission.”

The division’s Public Information Officer Tricia Smith told Coastal Review last week that this year’s recreational flounder season closure is following the plan under Amendment 3.

Southern flounder is an overfished species, and overfishing is occurring, Smith said. Overfished means that the population size is too small, and overfishing means the removal rate is too high.

When Marine Fisheries adopted Amendment 3 in May 2022, they also adopted separate quotas for recreational and commercial sectors — quotas based on the 2017 stock assessment.

The sector harvest allocations approved in the amendment were 70% commercial and 30% recreational of total allowable catch for 2022 through 2024. Starting in 2025, allocations will shift to 60% commercial and 40% recreational, and then 50% commercial and 50% recreational 2026 and beyond.

Right now, the commercial fishery does have more of a quota, but that was based on historical landings, Smith said.

Amendment 3 also put into place a pound-for-pound payback. If the quota is exceeded one year, “then pound per pound, you pay it back the next year,” she said.

The 2022 recreational fishery went over its quota, which was subtracted from what was allotted in 2023. And 2023’s landings went over the quota again, “so what’s left this year with recreational is barely enough to cover what the estimates have been averaging for dead discards,” Smith said. “It’s just not enough to really open a season.”

The same applies to the commercial fishery, Smith said. If they go over their quota, whatever that number is will be subtracted from the next year’s quota, and that’s taking into account the length of the season.

To determine recreational quota, numbers from the Marine Recreational Information Program are used. All states participate in the federal program that surveys fishermen to collect data, which is then used to determine estimates.

Commercial fishermen this past year were required to report every day during the flounder season, which “gave us a much better idea of where they were at their quota and when to close it,” Smith said.

In his letter, Crump said that he understands that the recreational sector exceeded its quota in 2023, while the commercial sector did not significantly exceed its quota.

“This is because the commercial sector’s landings were monitored daily and the season was closed as harvest approached the total allowable landings. Had monitoring for the recreational sector been conducted similarly, the season could have been closed in time to prevent the quota from being exceeded so much that there could be a season in 2024. Additionally, if the recreational sector was allocated an equal share of the total allowable landings, as initially proposed in Amendment 3, the sector may not have exceeded its quota,” Crump wrote.

He suggested that the Marine Fisheries Commission do what was discussed during its May meeting and call a special meeting to consider shifting allocations earlier than originally outlined in Amendment 3.

“The MFC should immediately conduct a special meeting to allocate 50% of the Total Allowable Catch to each sector in 2024 and not wait until 2026. Our recreational constituents should not suffer without a harvest season for something that was not their fault,” Crump wrote.

Smith said that with recreational flounder season closed this year, and more of a quota next year, the hope is that there will be enough quota for a season in 2025, but there’s no guarantee.

“We realize that a lot of the recreational fishermen feel like ‘I only catch one fish a year, there’s no way that I can be impacting the resource’ but there’s more than a million fishermen out there. It’s not just that one fish that you caught. It’s the fish that everybody caught,” plus dead discards, Smith said.

One of the longstanding disagreements between the two commissions is how to manage joint waters, which Crump mentioned in his June 10 letter.

He wrote that the state Rules Review Commission approved and once again reaffirmed the Wildlife Resources Commission’s authority to set rules for hook-and-line fishing in joint fishing waters at its April 30 meeting.

“Therefore, when the WRC meets on July 25th we will vote to accept, alter, or reject the proposal to close flounder season in both inland fishing waters and for hook and line in joint fishing waters,” Crump wrote. “I call on you to do the right thing for North Carolina’s recreational anglers and the businesses that depend upon them — call a special meeting to modify Amendment 3 and reallocate the flounder quota so that it is finally equitable between the two sectors and allow a recreational season in 2024.”

If North Carolina beaches are going to keep up their tug-of-war with the sea to maintain robust ocean shores, they’re going to need sand and a lot of it.

But, in an era when mining sand and pumping it onto beaches has become a go-to means of fortifying shores against erosion and storms, finding that just-right type of sand and enough of it for the foreseeable future might prove to be quite the challenge for many of the state’s coastal communities.

The dilemma is that beneath the surface of the vast Atlantic Ocean stretching from our shores, the amount of prized “beach-quality” sand needed to replenish them is finite.

There are, “critical sand shortages” across regions off North Carolina’s coast, according to a 2020 study by the U.S. Army Corps of Engineers in partnership with the Bureau of Ocean Energy Management, or BOEM.

Federal agencies are being asked to look elsewhere and explore potential untapped sand sources beyond the boundaries of state waters, miles and miles out to the outer continental shelf.

In return, those agencies are relaying a message to coastal communities throughout the country – it’s time to stop thinking about individual project needs and focus on a more regional approach if you want to keep putting sand on your beaches.

“We’re seeing this challenge through the South Atlantic region, call it ‘sand wars’ or ‘competing uses of the same resource,’” said Doug Piatkowski, a physical scientist with BOEM’s Office of Strategic Resources. “There’s a real need to start thinking about what we do know about offshore resource availability and then how we maximize use in a more holistic way, systems’ say, so that we can optimize what little resource we have.”

A century of coastal engineering

Little more than a century has passed since the first U.S. beach got sand from offshore to replump its eroded shoreline.

Since 1923, when Coney Island, New York, officially became the birthplace of the engineered beach, more than 1.5 billion cubic yards of sand has been dredged and injected onto the shores of some 475 communities in the country.

More than 3,200 sand projects have been completed on beaches from California to Florida to New York over the course of the last 100 years. Many of the communities that account for that number have renourished their beaches multiple times, according to the South Atlantic Coastal Study.

North Carolina is one of six coastal states that has placed a large portion of that total sand volume — more than 80% — on its shores, according to a beach nourishment study published in January 2021.

Carolina Beach has the distinction of being the first to have a federal beach erosion-control project completed in 1964.

Since then, the Army Corps has authorized dozens of federal projects, which entail routine sand nourishment throughout a period of 50 years.

Between 2010 and 2020, a total of 37 million cubic yards of sand was placed on U.S. beaches each year, according to the South Atlantic Coastal Study.

In the South Atlantic region, more than 1.3 billion cubic yards of sand is required to support the region’s 50-year sand needs. More than 1.56 million cubic yards of sand resources have been identified to fill those needs.

An evolving theme ‘many aren’t talking about’

That sand surplus isn’t expected to last.

“While regional sand resources are greater than documented sand needs as of today, economically viable long-term sources are limited in many areas across the region,” according to the study.

The South Atlantic study, also referred to as Sand Availability and Needs Determination, or SAND, was the first in which the Corps was given funding to do a regional assessment of sand needs.

It found that sand shortages were documented in every state within the Corps’ South Atlantic Division and identified “critical sand shortages” in regions of North Carolina, South Carolina, Florida, Alabama and Mississippi.

“If we were to continue at the rate that we’re going … we have a lot of work to do to figure out kind of this supply-and-demand assessment, realizing with climate change and increased storm frequency and this continued demand for sand that we’ve got to do a better job at assessing where this resource availability is, what conflicts may exist in their use and then, over this next 50-year horizon, really have a more realistic understanding of availability and what we can do in terms of meeting the resilience plans to address the need,” Piatkowski said.

Now, more than ever, it is important to recognize these regions are all within one system, he said.

It’s an “evolving theme that many aren’t talking about,” Piatkowski said.

But that isn’t to say that all beach communities are behind the regional-thinking curve.

Carteret County, for example, is considered a leader in its long-term management of available sand options to meet the needs for all of Bogue Banks. The 25-mile-long barrier island is home to Atlantic Beach, Indian Beach, Pine Knoll Shores, Salter Path and Emerald Isle.

And Dare County is starting to think longer-term and look more broadly at its potential sediment availability options, Piatkowski said.

“This is something that BOEM’s trying to kind of message to the coastal stakeholder communities that, ‘Look, it’s beginning to be a scenario where you’ve got multiple interests and multiple needs all within one system and we need to be smarter about figuring out the dynamics of what is the underlying geology for the sediment that we do have. Why is it there? What are the transport processes in the location that we’re dredging it from?’ And then, where we’re placing it because, at the end of the day, if two beaches are connected, that sediment is ultimately moving in that system,” Piatkowski said.

Sand-challenged Long Bay

To understand the complexities faced by beach communities that face critical shortages in sand nourishment sources look no further than Brunswick County.

According to the South Atlantic study, Brunswick County has a sand deficit of nearly 30 million cubic yards.

That’s because Long Bay is essentially a sand-starved area, one where there are vulnerable coastlines in need of hardy sand borrow sources.

“Due to the nature and location of the beaches, it’s more likely to find rock or clay material rather than beach-quality sand,” said Jed Cayton, public affairs specialist with the Corps’ Wilmington District, in an email response to Coastal Review.

Frying Pan Shoals, an area off the seaward southeastern side of Bald Head Island with millions and millions of yards of sediment sand, is federally recognized as essential fish habitat. That designation has kept it from being tapped as a sand borrow source.

That has made Jay Bird Shoals, which is near the mouth of the Cape Fear River, a dredging hotspot for Brunswick beaches and, in recent years, the subject of growing contention between towns vying for sand security.

The town of Oak Island earlier this year received pushback from neighboring beach towns for including the inner ocean bar at the mouth of the river as a secondary sand source in its application for a beach nourishment project. The Brunswick beach town hopes to kick off the project this winter.

Oak Island is requesting to place up to 3 million cubic yards of sand along its 9-mile-long beach from a primary source some 18 miles offshore.

Oak Island’s project is estimated to cost $40 million. The town is awaiting a decision on the permit application.

The secondary source identified in Oak Island’s initial application is between Caswell Beach and Bald Head Island, which each argue that sand is crucial to their nourishment efforts.

In a board of commissioners meeting earlier this year, Caswell Beach Town Manager Joseph Pierce told board members, “If they pull that much sand from that area, our concern is that erosion is going to affect our east end, as well as Bald Head Island. There is a huge hole down there now where sand will continue to fall in, and it will affect both beaches,” The State Port Pilot reported.

Oak Island amended its Coastal Area Management Act, or CAMA, major permit last month and removed its request to use the inner ocean bar as a secondary source.

The Corps and BOEM are currently studying a longer-term coastal storm risk management project for Oak Island. That study is projected to be completed in the fall of 2027.

An ongoing lawsuit has put on hold both the U.S. Fish and Wildlife Service’s plan to treat the toxic blue-green algae in Lake Mattamuskeet and state funding for the project.

On behalf of Defenders of Wildlife and the Sierra Club, the Southern Environmental Law Center challenged on May 20 the service’s decision “to allow the experimental use of an algaecide identified by the U.S. Environmental Protection Agency as toxic to birds in the 40,000-acre Lake Mattamuskeet” which has shown declining water quality since the early 1990s.

The 50,180-acre Mattamuskeet National Wildlife Refuge was established in 1934, providing habitat for hundreds of species of birds and is part of the Atlantic Flyway. The lake once filled with seagrass had none by 2017, and the declining submerged aquatic vegetation has led to poor water quality and clarity and contributed to large blooms of phytoplankton and cyanobacteria, or blue-green algae, according to the Fish and Wildlife Service.

The North Carolina Collaboratory, under the direction of the General Assembly, in July 2022 awarded a $5 million contract to the vendor, BlueGreen Technologies, which has an office in Pennsylvania, to test out its Lake Guard Oxy product on 400 acres of the lake. Based on results of several toxicity tests, the maximum single dosage rate to be used was to be 50 pounds per acre of Lake Guard Oxy, according to the service.

Southern Environmental Law Center Senior Attorney and Leader of the Wildlife Program Ramona McGee explained to Coastal Review that Mattamuskeet Refuge “is a revered bird sanctuary, so we’re very concerned about the impacts to birds from this toxic algaecide. This is a plan that resulted from the North Carolina General Assembly appropriating funds to the Collaboratory to conduct an experimental test of an algaecide. And for whatever reason, they selected Lake Mattamuskeet as their test site.”

The lawsuit is asking the court to block the plan until the Fish and Wildlife Service “conducts a full analysis that protects the mission and purpose of the wildlife refuge and takes a hard look at the toxic algaecide’s harms and the available alternatives,” the center said in its announcement.

The service, in a response to the lawsuit filed May 29, states that because of the North Carolina Department of Environmental Quality’s May 16 press release announcing that the “project would be ‘starting on June 1,’ Plaintiffs initiated this lawsuit and sought a temporary restraining order and preliminary injunction. However, as a result of the lawsuit, the Collaboratory has halted funding and put the Project on hold due to this pending lawsuit.”

McGee with the law center explained that not all details of how the company was selected for the study are known.

“What we do know is that BlueGreen Technologies registered lobbyists in the North Carolina General Assembly, and then subsequently the North Carolina General Assembly appropriated funds for this study. The vendor had to meet very specific criteria, and those criteria” match up with BlueGreen’s Lake Guard Oxy product and, “kind of unsurprisingly,” when the request for bids went out for this product, BlueGreen won with its Lake Guard Oxy product.

“After that, through whatever decision-making process, they selected Lake Mattamuskeet as the test site and again, Mattamuskeet National Wildlife Refuge is a bird sanctuary, and this algaecide is toxic to birds,” McGee said.

A U.S. Fish and Wildlife Service representative told Coastal Review that the service does not comment on active or pending litigation.

Emergency relief

The Fish and Wildlife Service released in March its final environmental assessment for the cyanobacteria treatment pilot study, and not long after, on May 16, the NCDEQ issued the press release stating that the department, under state water quality laws, had granted a certificate of coverage for the project to move forward as early as June 1.

“Because of that, the plaintiffs, the conservation groups here, went to the court seeking emergency relief,” McGee said, referring to the complaint filed May 20, motion filed May 24 that sought a temporary restraining order and a preliminary injunction, as well as the court-ordered, expedited hearing which took place May 31.

The Fish and Wildlife Service, the defendants in this case, indicated in their response brief in opposition to SELC’s motion dated May 29 that the Collaboratory had temporarily “halted funding and put the Project on hold due to this pending lawsuit,” but that funding could resume at any time.

The service added that, despite the Department of Environmental Quality’s announcement that the trial study could start on June 1, there were several steps that needed to be taken before the first treatment could be applied. Those steps could take around 10 weeks to complete.

SELC, in its May 30 reply to the defendant’s response brief, said its clients welcomed the new information and agreed to withdraw their request for a temporary restraining order, but not their request for a preliminary injunction.

“Because, as Defendants note, the UNC Collaboratory could resume funding the project at any time and set the project in motion, the Conservation Groups maintain their request for a preliminary injunction,” according to the reply.

McGee said that now, because of the new timeline, “we’re back to briefing.”

This means that the defendants will need to respond to the the law center’s May 30 reply by June 21, and then the groups would have to answer within 10 days, McGee explained.

This is still a request. “We’re still asking, at this point, the court to issue an order ensuring that defendants won’t move forward with the toxic algaecide experiment during the pendency of the lawsuit, but it’s at a slightly slower pace than it was before, given that defendants have basically assured us and the court that they’re not going to be applying the algaecide in the next couple of months,” McGee said.

The Collaboratory, in a prepared statement in response to Coastal Review’s query, said the vendor was selected in accordance with state law and that an academic team from the University of North Carolina Chapel Hill was working with the vendor to gather and assess baseline water quality data from Lake Mattamuskeet.

“The baseline data collection is ongoing, and the Collaboratory has made it clear to the vendor that subsequent phases of the project, including cost reimbursements for treatment activities, will depend on having all necessary State and federal authorizations in place. The continued collection of these data are important to better understand the impacts and effects of harmful algal blooms (HABs) in aquatic environments throughout our State,” according to the statement.

‘Evil plot of a comic book villain’

Plaintiffs Sierra Club North Carolina Chapter Acting State Director Erin Carey and Jane Davenport, senior attorney at Defenders of Wildlife, remain concerned about the algaecide study.

“An experimental algaecide that’s toxic to birds, targeted for use in a federal bird sanctuary, so a private company can collect proprietary information for its own profits –this whole thing feels like the evil plot of a comic book villain,” Carey said. “Common sense, public outcry, and even long-established mission priorities have failed to stop this misaligned and destructive project; our lawsuit is the logical next step. The stewardship inherent to the management of our preserves is paramount to the protection of thousands of species. We are proud to stand with our partners to protect the birds and other wildlife of Lake Mattamuskeet.”

Davenport reiterated that Defenders of Wildlife continues “to be very concerned about using Mattamuskeet National Wildlife Refuge as a testing ground for an algaecide known to be toxic to birds. We are grateful that we have more time to fully lay out the legal issues with the Fish and Wildlife Service’s short-circuited environmental analysis that treated the experiment as a done deal.”

‘Little risk of negative impact to birds’

The EPA said in March 2023 that Lake Guard Oxy “is toxic to birds. Do not apply this product or allow it to drift to blooming crops or weeds while pollinating insects are actively visiting the area.”

The environmental assessment the Fish and Wildlife Service released in March 2024, notes that the statement, “toxic to birds,” on the label of Lake Guard Oxy, “must be considered in the context of the use of the product,” but concluded that the expected benefits offset the risk.

“The Service believes that use of Lake Guard Oxy in the manner and location in which it is proposed will have little risk of negative impact to birds. The potential long-term benefits of the proposed action for birds and refuge habitats outweighs the potential for negative impacts.”

A BlueGreen Water Technologies spokesperson told Coastal Review Monday that the company “has safely remediated water bodies around the globe using its Lake Guard Oxy technology to improve ecosystems for waterfowl and wildlife.”

While the EPA’s product label “advises for potential toxicity of the active ingredient under a variety of conditions on land and water, BlueGreen’s protocol is specific to harmful algal blooms and our dosage rates for Lake Mattamuskeet are below toxic thresholds as confirmed through proactive testing on waterfowl,” they said.

The product “was developed as a ‘leave no trace’ protocol for use in threatened ecosystems battling toxic, harmful algae blooms, like Lake Mattamuskeet. The peroxide-based product is fully biodegradable and breaks down into water and oxygen molecules. Compared to other peroxide-based treatments, Lake Guard Oxy has been found to provide higher efficacy at much lower doses due to the floating time-release formulation,” they continued.

The first North Carolina beach community to build a terminal groin after state lawmakers lifted a 30-year ban is looking at the possibility of constructing more hardened erosion-control structures.

The Village of Bald Head Island recently asked its legislative delegates to bump the number of permits the state can issue for terminal groins from six to seven, giving the Brunswick County island government the option of building a groin at the east end of south beach to curb erosion. This is an area where chronic erosion threatens The Shoals Club, a private club that has a state-permitted sandbag revetment installed on the property to help protect it from the encroaching ocean.

The village is also considering replacing a series of fabric sand tubes installed along the west end of south beach with a rock structures.

Proposed changes to the 2011 law were recently handed over to Rep. Charles Miller, Sen. Bill Rabon, both Republicans, and N.C. Department of Environmental Quality Secretary Elizabeth Biser.

Biser and Miller visited the island May 17 after touring the Brunswick County water treatment plant’s reverse osmosis project, according to Sharon Martin, DEQ’s deputy secretary of public affairs.

“Secretary Biser appreciated the opportunity to meet with the local leaders and hear their concerns,” Martin said in an email responding to questions. “The visit to BHI was part of the Brunswick County visits arranged by Representative Miller for that afternoon.”

Language the village has drafted to amend the current law specifies that the number of rock structures that would replace fiber, sand-filled tubes would not exceed the existing number of permitted tubes or surpass the length of the longest existing tube.

“The structure(s) or field of structures may consist of groins,” the draft language states.

It is unclear if and when the drafted language might be introduced in the General Assembly.

Miller’s office did not respond to a phone call and email for comment. Rabon’s office also did not respond to a request for comment.

The existing soft tube groin field rests on the opposite end of south beach from the 1,300-foot-long terminal groin built nearly 10 years ago. The groin, a wall-like structure built perpendicular to the ocean shoreline, is designed to stop the movement of sand.

Bald Head Island Public Information Officer and Deputy Clerk Carin Faulkner explained that the village is being proactive in exploring long-term, more cost-effective shoreline stabilization alternatives at the west end of south beach.

Fiber tubes must be replaced every four or five years, she said.

Bald Head is among a small number of Brunswick beaches that get sand injections from periodic dredging that the U.S. Army Corps of Engineers does to maintain the Wilmington Harbor navigation channel.

The sand the village receives is typically not enough to stretch along the entirety of south beach, leaving the east end sand starved.

“We have successfully proven that an engineered beach solution works to stabilize our shoreline,” Bald Head Island Mayor Pro Tem Scott Gardner said in a statement to Coastal Review. “The combination of soft groins, a terminal groin, and a sand management plan have demonstrated that by slowing the movement of sand from our beaches, we can protect our infrastructure and property, and improve habitat for wildlife. Our 2025 plan maintains the quality of shoreline stabilization on the west end of south beach and allow us to begin investigating the possibility of a similar stabilization plan on the east end of south beach.”

The 2025 locally funded coastal storm damage reduction project will place more than 1 million cubic yards of sand onto shore at the terminal groin fillet, the east end of south beach and used to fill new fiber tubes that will replace existing ones in the tube groin field on the west end.

The village has obtained the necessary permits for the project, which is ready to go out for bids, Faulkner said.

Sand for the 2025 project is being tapped from Jay Bird Shoals, a borrow source that is not projected to have enough sand to provide for the future needs of Bald Head’s ocean beach.

The village has thus far unsuccessfully convinced the federal government to allow it to use a portion of Frying Pan Shoals as a sand borrow source.

In 2017, the village applied for a federal permit to mine with a 460-acre area on the western portion of Frying Pan Shoals about a mile off the island’s southeast shoreline.

Frying Pan Shoals is a line of shallow sandbars trailing from the southeastern tip of Bald Head island some 30 miles into the Atlantic Ocean and is an area that has no record of ever being dredged.

This is an area that includes essential fish habitat, a federal designation that describes waters and substrate necessary for fish for spawning, breeding, feeding or growth to maturity.

Bald Head Island is one of only two beach towns authorized to build terminal groins since the General Assembly in 2011 repealed the longstanding ban on the use of hardened erosion-control structures on the state’s beaches. Ocean Isle Beach in Brunswick County built its terminal groin in the winter of 2021-22.

Figure Eight Island in New Hanover County, Holden Beach in Brunswick County and Carteret County ultimately decided against building terminal groins on their shores.

North Topsail Beach in Onslow County is developing a draft environmental impact statement examining potential options, including a hardened structure, for stabilizing its shore at the New River Inlet.

Coastal Review Assistant Editor Jennifer Allen contributed to this report.

MANTEO — In an effort to address objections from the commission that last year nulled 30 state rules, including the environmental designation for Jockey’s Ridge, and to maintain temporary rule protections, the North Carolina Coastal Resources Commission unanimously voted Thursday to send an amended rule and findings from the state geologist back to the state Rules Review Commission.

“We’re trying, but there’s no guarantee that the Rules Review (Commission) will in any way change their mind,” CRC Chair Renee Cahoon said after the vote during the second day of the two-day meeting at the Dare County Administration Building. “We hope that the supplemental findings and the fact that we’re fighting so hard will make a difference.”

The findings, she said, are based on a letter received this week from State Geologist Kenneth Taylor affirming that Jockey’s Ridge meets the qualifications that define an Area of Environmental Concern, including being a unique geologic formation.

The CRC is seeking to restore the AEC designation to Jockey’s Ridge State Park in a permanent rule to replace the one tossed by the 10-member Rules Review Commission, which is appointed by the leaders of each chamber of the North Carolina General Assembly.

Jockey’s Ridge in Dare County is the tallest living sand dune on the East Coast, according to the nonprofit Friends of Jockey’s Ridge organization that supports the state park created in 1975 at the site once targeted by developers.

The Division of Coastal Management staff is proposing an amended rule to redesignate Jockey’s Ridge as an Area of Environmental Concern, along with a set of use standards to protect the AEC from incompatible development and loss of sand.

The proposed amended rule would include protective-use standards for the AEC to prevent incompatible development and sand loss, according to division staff. At the same time, the CRC intends the revised rule to alleviate the Rules Review Commission’s stated objections by limiting rule content to the Jockey’s Ridge AEC designation and its particular use standards.

The Rules Review Commission had objected to 30 existing CRC rules. Last year, new legislation prevented the CRC from responding to the objections and the state codifier removed them from the N.C. Administrative Code. The CRC then reinstated 16 of those rules through emergency rulemaking and proposed temporary rules, to which the rules commission objected.

“This is unchartered territory for us,” Cahoon explained. “In the past, any rule that came up for periodic review, we worked with the Rules Review Commission.”

The Coastal Resources Commission was caught off guard during last year’s state legislative session, she said, when the General Assembly gave the rules codifier the ability to eliminate existing rules. Objections were also issued against numerous other state agencies’ rules.

“No more notification — just absolutely unfettered power to drop the rules,” Cahoon said of the change.

Area residents and Jockey’s Ridge supporters have come out in force in favor of the AEC redesignation, which in part ensures that sand will not be removed from the dune and protects it from unsuitable development.

“You can’t get this back,” resident Taylor Conyers told Coastal Resource Commission members during the public comment portion of the meeting Thursday, adding that she was speaking on behalf of other younger residents. “You can’t get Jockey’s Ridge back once it’s encroached upon. Like, it’s gone.”

As Daniel Govoni, policy analyst and federal consistency coordinator with the Division of Coastal Management, detailed in his presentation Thursday, the proposed rule is divided into three areas: description, boundary and use standards.  

“If we approach this rule as a brand-new rule and, instead of going into all the other processes, it would have three sections,” Govoni said.

Commission member Jordan Hennessy had previously requested staff to prepare proposed rule language for the panel to review.

Hennessy, who has attracted attention for, among other actions, attempting to oust Cahoon as chair at the start of his first commission meeting, spoke out in support of the AEC for Jockey’s Ridge. 

“It’s a gem, a treasure to the state,” said Hennessy.

The commission, during the meeting, also approved starting the permanent rulemaking process, which takes about a year, to replace six other rules that were deleted over Rules Review Commission objections.

The process would require additional public comment periods and public hearings.

New Hanover County beaches could again mine sand from nearby inlets to nourish their oceanfront shores under a proposed law recently passed by the U.S. House of Representatives.

The bill would exempt a handful of federal coastal storm risk management projects on the East Coast from a rule that prohibits local governments from tapping sand sources they have historically used within the Coastal Barrier Resources System.

The proposed law would apply only to projects that have been pumping sand from borrow sources within the federally protected system for more than 15 years. Those include Masonboro Island at Wrightsville Beach, Carolina Beach Inlet at Carolina Beach, an inlet in South Carolina and one in New Jersey.

H.R. 524, introduced by Rep. David Rouzer, R-N.C., in January 2023, would also return the use of federal funds for projects that use sand within a Coastal Barrier Resources Act, or CBRA, unit to nourish adjacent beaches outside of the system.

“This legislation allows these beaches to continue to use their historic borrow sites for protection from storm damage, maintain their natural ecosystems, and protect our local economy,” Rouzer stated in a press release following the House’s April 11 passage of the bill.

The bill is now with the Senate environment and public works committee.

Proponents of the bill argue that allowing projects that had for years used sand within the system to nourish nearby beaches reduces costs and ecological impacts.

“It’s an opportunity to recycle sand. It’s an opportunity to reduce potential environmental impacts. And, it’s an opportunity to reduce federal and local expenditures,” said New Hanover County Shore Protection Coordinator Layton Bedsole. “I think Wilmington had been in compliance 20 years before CBRA was written and we haven’t encouraged development in sensitive coastal locations like inlet shoulders. That’s a major tenant in CBRA.”

Congress passed CBRA, pronounced “cobra,” in 1982 to discourage building on relatively undeveloped, storm-prone barrier islands by cutting off federal funding and financial assistance, including federal flood insurance. The act was also established to minimize damage to fish, wildlife and other resources associated with coastal barrier islands.

Last May, Matthew Strickler, deputy assistant secretary for the Interior Department’s U.S. Fish and Wildlife and Parks, expressed the current administration’s objections to H.R. 524 in his testimony before the House natural resources committee.

Using federal funds to move sand dredged within the system to an area outside of it “is considered counter to CBRA’s purposes,” he said referring to the Coastal Barrier Resource System, or CBRS.

“While some of the sand taken from CBRS units for beach renourishment activities may return to the unit over time, the overall impacts of dredging in these areas protected by CBRA are detrimental to coastal species and their habitats,” Strickler said.

But proponents of the bill argue that years of monitoring these inlets prove otherwise.

“We’re in a situation where Mother Nature brings sand down our beach into an engineered borrow site and then we recycle it back up on the beach in the next three or four years. That’s ideal. We’re recycling rather than mining. We’ve got consistency that works for us that we can work with,” Bedsole said.

December 2023: Sand nourishment to begin in Wrightsville Beach

Wrightsville Beach was using the rich, beach-quality sand routinely pumped from Banks Channel and placing that material on its ocean shore for roughly two decades before CBRA was enacted.

In the mid-1990s, the Army Corps of Engineers permanently allowed the town to use Masonboro Inlet as a sand borrow source, shielding the town from ongoing debates over the interpretation of the law as it pertains to whether sand within a CBRS unit may be dredged and placed onto a beach outside of a CBRA zone.

By 2019, then-Interior Secretary David Bernhardt determined that federal funds could be used to pay for dredging sand with CBRS units and placing that sand on beaches outside of those zones for shoreline-stabilization projects.

A year later, the National Audubon Society challenged Bernhardt’s interpretation in a lawsuit filed against the former secretary, the interior department and U.S. Fish and Wildlife Service. The organization argued the interpretation “vastly expands potential sand mining projects” within areas protected in the system.

The Biden administration overturned the rule in 2021 and Audubon agreed to drop its lawsuit.

The new interpretation forced beach towns that had historically used sand from CBRA zones to look offshore.

Facing exponentially higher costs and an offshore borrow site scattered with old tires broken free from an artificial reef, the town was given an emergency exception by the Corps to get sand from the inlet. That project, which pumped roughly 1.04 million cubic yards of sand onto Wrightsville’s beach, wrapped in mid-March.

The cost to use sand dredged from the inlets is substantially lower than pumping sand from an offshore borrow site.

The last time Carolina Beach tapped the inlet borrow site for sand to place on its ocean shoreline the bid tab was $5 a yard.

“The current project came from the offshore borrow area, as it has, was $11 and some change a yard,” Bedsole said. “It just costs more to go offshore.”

Bids are expected to go out this spring for Carolina and Kure beaches’ nourishment projects, which as of now will use sand from an offshore borrow site.

How that sand might affect the channel Carolina Beach used for years as a sand source has raised concerns among beach town officials.

“We have pulled sand out of that inlet for pretty much my entire life,” said Carolina Beach Mayor Lynn Barbee. “We know what the environmental impacts are. They’re very minimal. We haven’t seen any sort of erosion because of taking that out of there. We haven’t seen any impacts to wildlife, ever, so it’s hard to see what the harm is. What we’ve been doing in the inlet is the borrow pit fills up and we pump that sand out every three years onto the beach and then it drifts back in and fills up and we pump it back out. That seems intuitively better than going out offshore and basically running a sand mine underwater and disturbing what was natural out there.”

Another issue, he said, is how sand pumped onto the beach from the offshore site may affect the inlet, one heavily used by boaters and offers the fastest route for first responders to get into the water.

Barbee said the town has seen “unprecedented” shoaling in Carolina Beach Inlet since it began using the offshore borrow site.

“We have really struggled to keep that open,” he said. “We’ve seen the cost to keep the inlet open go up. If in fact our theory is correct, where else would that sand have come from if it wasn’t introduced from the offshore borrow pit. You’re introducing a new sand source into the traditional system. Certainly, anecdotally, we didn’t have this problem, we do something different, now we do have the problem. It doesn’t seem like it’s a huge leap.”

Barbee said the hope is that the bill will become law before the next project begins.

“If not, we have three more years of these elevated costs, and then we’re just putting more and more sand in the system, and the worry is that when does it become too much?” he said.

More than a dozen rules state coastal management officials say are crucial to day-to-day operations will remain on the books for now.

The Coastal Resources Commission on Wednesday unanimously adopted the 16 rules as “temporary,” a move that will keep the rules in the state Administrative Code for one year or until they are reinstated as permanent rules.

The lead-up to Wednesday’s vote, which was cast during a special called meeting, had Mary Lucasse, special deputy attorney general and counsel for the Coastal Resources Commission, at times seemingly defend a case already in the courts.

Commissioner Jordan Hennessy, who was newly appointed to the commission last year, peppered Lucasse with questions as he referenced an ongoing lawsuit the coastal commission and North Carolina Department of Environmental Quality filed against the Rules Review Commission and state Codifier of Rules Ashley Berger Snyder.

“Are we following all the rules and laws of the state when it comes to the temporary rules and permanent rulemaking process because the statement says that the CRC fails to show that the notice and hearing requirements of temporary and permanent rulemaking are contrary to public interest,” Hennessy said.

He was referring to comments included in a letter Snyder sent Lucasse a couple of days after the coastal commission adopted the rules as “emergency” late last year as a means to quickly get them back into the state code.

“In my opinion the Coastal Resources Commission is doing that,” Lucasse responded. “And, as you know, there’s a dispute between two equally positioned agencies about how to interpret laws. That’s what codifier has indicated. I don’t agree with her. Other people don’t agree with her. It doesn’t really matter because between the two of these equal agencies, if we think we’re following the law and we move forward doing that, then it will have to be determined by a court here in North Carolina because that’s how disputes are decided.”

When Hennessy read from the lawsuit later in the meeting, Lucasse said he “appeared to be taking that at face value” and that that was not appropriate.

“I’m asking questions to try to get better educated on this and I’d appreciate if we can just stick to that and answering the questions,” Hennessy responded.

Snyder, who is the daughter of North Carolina Senate President Pro Tem Phil Berger, R-Rockingham and Guilford, removed 30 of the coastal commission’s longstanding rules last October after those rules were objected to by the rules commission.

State Division of Coastal Management officials have been working with the rules commission to tweak wording in the 14 rules that have not been temporarily adopted.

The now-adopted temporary rules enforce certain protections for coastal landmarks including Jockey’s Ridge State Park in Nags Head and Permuda Island off the shores of North Topsail Beach in Onslow County.

Some members of the coastal commission questioned why the state’s coastal management division needed the rule that designates Jockey’s Ridge as an area of environmental concern, or AEC, since the landmark is also offered federal protections. AECs are areas of natural importance that the division designates to protect from uncontrolled development.

“If it’s determined to be a natural landmark by the U.S. Department of Interior why will we need a rule to protect it?” Commission Robbie Yates asked.

The rules allow the coastal commission to have jurisdiction and set rules that are consistent within the coastal management’s Coastal Area Management Act, or CAMA, program, Lucasse said.

And the rule in question dictates that sand blown from Jockey’s Ridge onto neighboring properties must be returned to the park, another commissioner noted.

“Given the winds that we have down here, Jockey’s Ridge is protected so that when the sand blows away it gets put back into the resource, not taken away and disposed of, for example, on the beach or somewhere else,” Commission Chair Renee Cahoon said.

An overwhelming majority of nearly 230 comments submitted to the division over the course of more than a month supported the temporary rules. Environmental organizations, the Southern Environmental Law Center and a handful of beach towns from North Topsail Beach to Duck supported the rules. More than 600 signatures were included in a petition submitted by the N.C. Conservation Network.

Yates further pressed Lucasse, asking how one might argue that the rule pertaining to Jockey’s Ridge is a matter of public safety.

“The legislature has said that it’s very important for them to balance development and to protect the national natural resources at the coast,” Lucasse said. “Your commission, you and the people that have sat in the chairs before you, have gone through a very thoughtful process of designating areas of environmental concern in order to protect the natural resources at the coast. I think that this is a situation in which your coastal program has been lessened and the welfare of the people who have depended, as the legislature has designated this commission to do to protect those natural resources, means that we’re in a situation where there’s a need for this temporary action in order to protect public health, safety and welfare.”

But Commissioner Steve King questioned whether having multiple layers of jurisdiction is beneficial for the public.

“To me that is de facto definition of bureaucracy and I’m not sure how that weighs in the public interest to have that kind of process,” King said.

He said he would be looking at the permanent rules, saying what will be, in his opinion, a “complete investigative audit of rulemaking process and permitting making process.”

Hennessy said he would support the temporary rules “for now,” but that he would like to see some changes made to the rules before they become permanent.

Cahoon said there will be ample time for commissioners and the public to comment further on the rules.

A 2023 law that shifted gubernatorial appointment powers of North Carolina’s environmental and coastal commissions does not violate the state constitution, a three-judge panel unanimously ruled.

The Wake County Superior Court judges late last week concluded that the state’s executive branch, including the governor, agriculture commissioner and insurance commissioner, holds a majority of appointments to the Environmental Management Commission, Coastal Resources Commission and Wildlife Resources Commission, as well as two other boards, under the new law.

“Our Constitution does not create a unitary executive,” the Wake County judges ruled. “The General Assembly’s power to organize and reorganize the executive branch and to prescribe the functions, powers, and duties of executive officials, including for members of the Council of State, encompasses authority to divide between the Governor and other constitutional executive officers the power to appoint members of statutory boards and commissions.”

But judges John Dunlow, Dawn Layton and Paul Holcombe III also ruled that a portion of the law gave legislators too much control over the Board of Transportation and the Economic Investment Committee.

Democratic Gov. Roy Cooper’s partial victory is being challenged by GOP House Speaker Tim Moore and Senate leader Phil Berger, whose attorneys filed a notice of appeal to the Court of Appeals on Friday, according to the Associated Press.

Cooper sued lawmakers last year two months after the Republican-led General Assembly passed the law last August. The law also restructures appointments to the Commission for Public Health and the Residential Code Council.

The Residential Code Council changes become effective Jan. 1, 2025. That council, which will consist of 13 members, will be tasked with reviewing and considering proposed revisions, amendments and appeals to the state residential code.

Seven of the members will be appointed by the governor. The General Assembly will select the rest of the members, three of which will be recommended by the House speaker and three by the Senate leader.

The Coastal Resources Commission is a 13-member panel that adopts rules for the state’s Coastal Area Management Act and the Dredge and Fill Act, and establishes policies for the state Coastal Management program. Under the new law, six of the commission’s members are appointed by the governor, six are chosen by legislators and one is appointed by the state insurance commissioner.

The commissioner of agriculture appoints two people to the 15-member Environmental Management Commission, while the governor selects seven members and the General Assembly appoints six.

Earlier last month, the same superior court judge panel struck down a previous court ruling from a single judge that temporarily blocked that commission from dropping its lawsuit against the Rules Review Commission.

The rules panel rejected in May 2022 a proposed rule by the Environmental Management Commission setting new state standards for 1,4-dioxane, a likely human carcinogen.

The Coastal Resources Commission is moving forward with a lawsuit it and the North Carolina Department of Environmental Quality filed against the Rules Review Commission last November in Wake County Superior Court.

The complaint asks the court to resolve deadlock over legal interpretations between the two commissions and restore 30 longstanding rules to which the Rules Review Commission had objected and kicked back to the Coastal Resources Commission last October.

In December, the Coastal Resources Commission adopted 16 of the rules as “emergency” to get them put back into the North Carolina Administrative Code.

North Carolina Division of Coastal Management officials say the 16 rules affect day-to-day decisions within the division.

The commission is holding a special called meeting at 11 a.m. March 13 to vote on whether to adopt the rules as temporary, a measure that would keep them in the administrative code for one year or until they are reinstated as permanent rules.

To view the meeting by video conference join webinar #2430 941 5858 via Webex and use password CRC2024 (2722024 from phones). To join by phone call 1-415-655-0003 and use access code 2430 941 5858.

A listening station will be made available at the Division of Coastal Management headquarters at 400 Commerce Ave. in Morehead City.

HAMPSTEAD – Local fishing guides, waterfront property owners, and self-professed avid fishermen joined forces in vocally opposing proposed shellfish leases offshore of Topsail Island, arguing an overabundance of oyster farms are crowding out local waterways and cutting off access to bountiful fishing areas.

Nearly 30 people spoke Wednesday night during a North Carolina Division of Marine Fisheries-hosted public hearing on shellfish lease applications of two area oyster farming companies.

The overwhelming consensus from those who packed a room in the Surf City Municipal Complex was, while they support local shellfish farming efforts, more leases will infringe upon popular fishing spots, impede boating and kayaking access, and affect the viewshed of waterfront properties near the farms.

And most said they are specifically against the water column lease applications of N. Sea. Oyster Co. and Pirate Oysters LLC, raising concerns about the floating equipment used for this type of shellfish farming.

Unlike bottom leases, where shellfish farming gear must be placed on or within 18 inches of the waterbed, equipment used in a water column lease cannot rest on the bottom or extend more than 18 inches above the bottom.

N. Sea. Oyster Co. owner and CEO Michael Conor MacNair explained Wednesday night that the 10-acre water column lease he’s applied for in Waters Bay will not expand the shellfish farming footprint in that waterway. Water column leases have to be over bottom lease areas.

“No one, including myself, is increasing the lease area,” he said, clarifying that the bottom lease area over which he wants to farm in the water column is nearly 100 years old.

Pirate Oysters LLC has applied for a 0.88-acre shellfish bottom lease and water column lease in Topsail Marshes.

MacNair said his company leaves large navigation channels fit for flat-bottom boats and kayaks within his lease areas.

“This lease is 1,200 feet from the shoreline. There is a 28-acre large spoil island separating this lease from the Intracoastal Waterway where most commercial fishing and recreational boating use exists. Commercial fishing that does exist in this bay is wild oystering, which oyster farms are proven to have a positive impact on, blue crab fishing, which oyster farming has a positive impact on, as well as we maintain extra buffers and channels around our lease to allow crab boats to get in and we stay 300 feet away from the string of crab pots that is placed in back waters,” he said.

MacNair expressed frustration, saying that no one – neither resident or fishing guide – has gone to him to talk about their concerns regarding his lease application.

“Why?” he asked. “If it’s everybody’s water, why can’t we all work together to figure out why we can use it for everybody. Isn’t that what would make the coastal economy thrive best?”

Lee Parsons, fishing charter captain of gottafly Guide Service in Hampstead, said the state needs to research the possible affects shellfish farming in the water column have on fisheries.

“Until the water column lease study is done I’m opposing all the work on leases in the state because the state needs to get on their act and they need to do this,” he said.

Parsons offered to take a state official out on his boat free of charge and as often as needed to observe the lease areas “to see what the fish are using.”

“I know the bottom leases are good for the fishery and I do not oppose the bottom lease in any way, shape or form. I fish them all the time. But with the water column leases, technically, from what I understand, we’re not allowed to be in there and I know for a fact how it’s affecting it. I’ve seen how it’s affected the grasses up in Traps Bay and what’s happened because of that.”

Hampstead resident and recreational kayak fisherman Lori Stage said she does most of her fishing in Waters Bay.

“I am not opposed to bottom leases per se, but I am vehemently opposed to the water column leases due to the loss of surface area for us kayakers to fish, the potential negative effects to the ecosystem and just the general loss of recreational use for that area,” Stage said. “I support and encourage small business when it makes sense and doesn’t hurt the environment nor if it infringes on others. This lease would potentially negatively affect the ecosystem and absolutely infringes on the rights of recreational fishermen to fish these waters.”

Area crabber Eustace Wood said he opposes MacNair’s lease application, “only because they want a vertical lease.”

“The areas that are taken up with the vertical lease, I can’t use them anymore,” Wood said. “They can say what they want to, you’re not going in there, you’re not going to get too close to them because you just can’t maneuver around (them) and there’s getting to be too many of them.”

Topsail Beach Mayor Steve Smith said that the town is in favor of oysters and agricultural growth. “However, certain restrictions need to be understood and applied to follow the letter of the law,” he said.

Smith said that state laws passed within the past year give the town jurisdiction over agriculture and aquaculture within town limits.

“We ask that you recognize these legal issues and abide by those,” he said.

North Carolina Shellfish Growers Association Vice President Chris Matteo disputed some of the comments made by previous speakers, calling them factually incorrect.

“These are state waters. They’re not local waters,” he said, adding that some legislation might have been slipped in making a change, “but the Farm Bureau will probably have something to say about that.”

Shellfish growers are farmers, he said, and do not fall under the jurisdiction of Coastal Area Management Act rules or those set by the North Carolina Coastal Resources Commission.

“One of the biggest things that people have said tonight is they’re not against bottom leases, but they’re against column leases. Well, bottom leases can have gear up to 18 inches tall and in Conor’s case, the 10-acre lease, the water is not that high. So, whether it’s a water column or bottom lease, it’s impacting the same way on navigation and on access. We can’t restrict access to water column leases or bottom leases – something else I heard tonight,” he said.

He implored the crowd to look up research being done along the East and West coasts on floating gear and said that North Carolina was one of the last to allow shellfish farming in the water column.

Matteo advised local residents to talk to their local and state elected officials about getting shellfish lease moratoriums lifted in counties south of Pender, including New Hanover and Brunswick counties, so shellfish growers will have more areas in which to farm.

Shellfish farm lease areas have been allowed in North Carolina’s coastal public trust waters since 1858. The North Carolina General Assembly in 1989 enacted law that allows shellfish leases in the water column.

The public comment period closed Thursday.

Now the decision to approve or deny the leases, or approve them with conditions, rests in the hands of state Division of Marine Fisheries Director Kathy Rawls.

Update Jan. 26: The Coastal Resources Commission has extended the public comment period on proposed temporary rules to 5 p.m. Feb. 22, the Division of Coastal Management announced Thursday. The previous deadline was Feb. 1.

Written comments can be sent by email with “Temporary Rules” in the subject line to Angela.Willis@deq.nc.gov or by mail Tancred Miller, Director, Division of Coastal Management, 400 Commerce Ave., Morehead City, NC 28557.

Original post published Jan. 12:

SNEADS FERRY – Rules the state’s lead environmental agency says are critical to its day-to-day operations drew little to no public comment during a series of hearings hosted in three coastal counties this week.

Fewer than 20 people turned out for public hearings the North Carolina Division of Coastal Management held Tuesday and Wednesday in Dare, Carteret and Onslow counties.

Even fewer spoke on the record to share their thoughts about 16 rules the Coastal Resources Commission agreed last month were too important to be pulled from the state Administrative Code. The commission was created to adopt rules for the state’s Coastal Area Management Act, or CAMA, and the Dredge and Fill Act, and establishes policies for the North Carolina Coastal Management Program.

The commission voted at a specially called meeting in mid-December to classify the rules as “emergency” and adopted them as a way to fast-track getting them back into the Administrative Code.

The commission’s vote overrode the decision of state Codifier of Rules Ashley Berger Snyder to remove 30 of the coastal commission’s longstanding rules after those rules were objected to by the Rules Review Commission last October.

Snyder, who was appointed in 2021, returned a telephone call to Coastal Review Thursday but declined to answer questions.

“We do not comment on any pending litigation,” Snyder said, referring to an ongoing lawsuit the coastal commission and North Carolina Department of Environmental Quality filed in November against her and the Rules Review Commission.

Snyder is the daughter of North Carolina Senate President Pro Tem Phil Berger, R-Rockingham and Guilford.

The Division of Coastal Management is accepting written comments on the 16 emergency rules through Feb. 1.

All comments are to be shared with the Coastal Resources Commission during its first meeting of the year, Feb. 22, in Wilmington. The commission is expected to decide whether to adopt the 16 rules as temporary in order to keep them in the Administrative Code where the rules would remain through to about April.

If adopted, the temporary rules would then be kicked back to the Rules Review Commission for reconsideration.

Division of Coastal Management Deputy Director Mike Lopazanski said Wednesday during the last of the three public hearings the division held this week that staff had been working with the rules commission to tweak wording in the 14 rules that were not adopted as emergency rules.

Those rules are important, he said, but the 16 emergency rules “were the ones we thought were critical.”

Among those rules is one that designates Jockey’s Ridge State Park as an area of environmental concern, or AEC, and dictates that sand blown from Jockey’s Ridge onto neighboring properties must be returned to the park. AECs are areas of natural importance that the division designates to protect from uncontrolled development.

Nags Head Mayor Ben Cahoon, one of the few people who commented during the series of hearings, emphasized the importance of the rule to preserving the park.

“Coastal North Carolina has largely avoided corresponding coastal environment-changing disasters due to CAMA and its establishment and regulation of AECs,” he read from a prepared statement at the hearing held in Dare County on Tuesday. “The establishment of an AEC requires a closer examination of proposed activities and interventions, and gives everyone time to fully consider the consequences of particular actions.”

He noted that Jockey’s Ridge is the only state park that lies fully within a town’s boundaries.

“It is very special to us. Please help us protect it,” he said.

Until recently, when the Rules Review Commission objected to a rule, the agency that submitted the rule had to request the rule be returned to make changes. If an agency did not make that request, then the objection would be merely noted in the rule and that rule would remain in the Administrative Code.

But the state budget adopted Oct. 3 of last year includes language that gives the rules commission authority to send rules it objects to back to agencies. The budget also appears to give the state codifier of rules, in this case, Snyder, new authority. It remains unclear, however, whether that new authority includes stripping longstanding rules from the books.

Two days after the budget went into effect, the Rules Review Commission voted in a special called meeting to return the 30 of 132 rules the Coastal Resources Commission submitted for review.

The coastal commission and Department of Environmental Quality sued, asking a Wake County Superior Court judge to resolve the deadlock over legal interpretations between the two commissions and restore the rules.

According to the complaint, on Oct. 26, 2023, Snyder explained via email to DEQ’s rulemaking coordinator that, “because readoption of rules in the periodic review process requires that all rules be readopted as if they are new rules, the RRC had to approve preexisting rules for those rules’ ‘entry’ into the Code. As described further in the attached email correspondence, the Codifier asserted that the thirty rules at issue were removed from the Code because the rules had not been approved by the RRC and were subsequently returned to the agency.”

Note: Coastal Review will not publish Monday in observance of the Dr. Martin Luther King Jr. holiday.

More than a dozen longstanding coastal rules now part of a lawsuit between two state-appointed commissions will be temporarily reinstated.

The North Carolina Coastal Resources Commission during a special called meeting Wednesday morning adopted 16 emergency rules that, by being classified “emergency,” will be entered into the state Administrative Code by early January and without public input, a concern raised by at least one member of the commission.

Mary Lucasse, the commission’s legal counsel, and North Carolina Division of Coastal Management staff explained that, without the rules in place, vulnerable coastal cultural resources lose certain protections and the commission is limited in how it can fulfill its legislatively charged duties.

The Coastal Resources Commission adopts rules for the state’s Coastal Area Management Act and the Dredge and Fill Act, and establishes policies for the North Carolina Coastal Management Program.

“What we have is a situation that the Division of Coastal Management cannot rely on those rules to issue permits for development for coasts, for development in the coastal counties and to make enforcement decisions,” Lucasse said. “You can’t comment on federal consistency, or DCM on your behalf, based on these rules so what’s happened is that we have lost rules and the loss of those rules seriously impacts the system’s ability to manage the Coastal Management Program, which is given to the commission by the legislature at your purview.”

The removal of these rules, which have been around for many years, strips protections for coastal lands and waters and is a threat to public safety, she said.

The emergency rules are among 30 rules the Rules Review Commission objected to based predominately on technical wording and kicked back to the Coastal Resources Commission in early October. Shortly after the Rules Review Commission’s decision, the state’s Codifier of Rules Ashley Snyder pulled the rules from the Administrative Code.

Lawsuit seeks rules restoration, resolution

The Coastal Resources Commission and North Carolina Department of Environmental Quality responded by filing a lawsuit in Wake County Superior Court in early November.

The Nov. 3 complaint asks the court to resolve the deadlock over legal interpretations between the two commissions and restore the 30 rules.

“DCM receives permit applications almost daily, and the lack of these thirty regulations will immediately cause an impact to any applications relying on these rules,” the lawsuit states.

Lucasse on Wednesday said that she and DEQ officials selected the 30 rules to be placed back on the books as soon as possible based on the division’s use of them on a day-to-day basis.

“These 16 rules are the ones that staff feels there’s public safety reasons that you need to move forward immediately and get these back in the code so they can use them,” she said. “The other 14 will be resolved through the litigation.”

She and Division of Coastal Management Deputy Director Mike Lopazanski specifically pointed out that the emergency rules are needed to continue to protect places of significant cultural and ecological resources, including two places unique to North Carolina – Jockey’s Ridge State Park in Dare County and Permuda Island Reserve in Onslow County.

The Coastal Resources Commission submitted 132 readopted rules for the Rules Review Commission to review.

Lopazanski said that division staff had worked through many of the technical changes the Rules Review Commission requested, but that the rules commission continued to object to 30 of the rules.

The objections hinge on what the rules panel considers to be vague and ambiguous language, a need to clarify procedures and definitions, and references addressing statutory authority, according to Lopazanski.

Objections to rulemaking authority

The Rules Review Commission is a legislature-appointed, 10-member body created by the North Carolina General Assembly in 1986 that could object to, but not veto, proposed rules. A series of amendments made to the North Carolina Administrative Procedure Act in the mid-1990s shifted more power to the commission.

In 2003, rulemaking agencies were granted the right to file for court-issued judgments in cases where the commission vetoed proposed rules.

If the rules commission rejected a rule, the agency that submitted the rule had to request the rule be returned to make changes. That changed on Oct. 3 of this year with the adoption of the state budget. Language in the budget gave the rules commission additional powers, and now it’s essentially challenging the Coastal Resources Commission’s rulemaking authority.

During a special called meeting two days after the state budget went into effect, the Rules Review Commission voted to return the 30 rules to the Coastal Resources Commission. The Rules Review Commission argued that language in the proposed rules did not meet the definition of a “rule” per state statute.

DEQ and the Coastal Resources Commission argue that the rules do meet the definition because “they establish guidelines, objectives, standards and policies” for defined areas of environmental concern, or AECs, as set forth by the General Assembly.

“These rules are not newly adopted and since the 1970s and 1980s have been part of the Code pursuant to the very same statutory authority,” according to the lawsuit.

The structure of the Rules Review Commission has, for years, been subject to lengthy legal debates, and its decisions have been challenged numerous times over the years. Since the turn of the century, both the Environmental Management Commission and North Carolina State Board of Education have sued the Rules Review Commission.

In August 2020, Gov. Roy Cooper filed a lawsuit challenging legislative control of the rules commission. The governor dropped his lawsuit in October 2022.

Public hearings set on ‘stopgap’ rules

The Coastal Resources Commission will consider adopting the 16 rules as “temporary” during its Feb. 22, 2024, meeting. If approved, the temporary rules will be forwarded to the Rules Review Commission for reconsideration.

Coastal Resources Commission member Lauren Salter explained to fellow commission members that the emergency rules are a “stopgap” until the board can push temporary rules through to the Rules Review Commission and that the public is not being shortchanged in being allowed to comment on the rules.

The emergency rules have “been in place for a very long time,” she said. “This is just the most expedient, fastest way to bridge the gap between those things and I’m having trouble understanding the concern with public review since (the rules) did go through a great deal of public review. That’s how we got here.”

Public hearings on the proposed temporary rules will be hosted Jan. 9 and Jan. 10 in Onslow and Dare counties and in Morehead City.

Once the emergency rules are codified, they may be in place for up to 60 days.

Commercial shrimpers can continue to harvest by trawler in the Pamlico Sound without a Clean Water Act permit, and the state will continue to manage its fisheries.

The U.S. Court of Appeals upheld last week a district court’s Sept. 17, 2021, decision that trawling in the North Carolina estuary does not violate the Clean Water Act, as alleged in a lawsuit that the North Carolina Coastal Fisheries Reform Group filed in August 2020 against a half-dozen commercial shrimping businesses. 

The reform group argued that bycatch being thrown back into the water is a pollutant and disturbing sediment with trawl nets is dredging, either of which, the group contended, would require commercial shrimpers to obtain a Clean Water Act permit. The three-judge panel rejected the argument.

The district court dismissed the suit in 2021 because the Clean Water Act does not regulate bycatch — the state does — and that disturbing sediment with trawl nets does not violate the act.

The Clean Water Act establishes “the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters,” the EPA explains.

“We affirm the district court’s decision that Fisheries Reform Group fails to plausibly allege that shrimp trawlers are violating the Clean Water Act by either (1) throwing their bycatch back into Pamlico Sound, or (2) disturbing sediment on the Sound’s floor with their trawl nets, thereby causing it to resettle,” Judge Julius Richardson wrote in the panel’s unanimous opinion decided Aug. 7. 

Congress leaves fisheries management, including bycatch, to the state or the National Marine Fisheries Service for waters 3 miles offshore, not the Environmental Protection Agency, which enforces the Clean Water Act, he notes.

The fisheries reform group, a Wilmington-based nonprofit established in 2020, “to change how the State of North Carolina manages our public trust marine resources,” filed the lawsuit against Capt. Gaston LLC, Esther Joy Inc., Hobo Seafood Inc., Lady Samaira Inc., Trawler Capt. Alfred Inc., Trawler Christina Ann Inc., and Trawlers Garland and Jeff Inc. 

The reform group’s legal counsel, Jim Conner, told Coastal Review in an email that “the massive corporate-owned shrimp dredges are tearing up Pamlico Sound” and destroying fisheries across the entire region. 

“Their dredges tear up the bottom and their nets capture and kill four pounds of finfish and other life for every one pound of shrimp, killing billions of fish every year that are simply dumped back into the water as pollutants,” he said. “The Court missed an opportunity to apply the clear and unambiguous wording of the Clean Water Act to protect North Carolina estuaries and fisheries.”

North Carolina Fisheries Association Executive Director Glenn Skinner said in a press release last week that while the organization was not in the lawsuit, members paid attention because the decision would have had “tremendous repercussions” for shrimpers, the industry, and commercial and recreational fishermen nationwide.

“This is a huge win for all fishermen, commercial and recreational. If the courts had decided with Mr. Joseph Albea and the Coastal Fisheries Reform Group, the results would have been devastating for both sectors,” Skinner said in a statement.

Judge Richardson explains in his published opinion that the major-questions doctrine was the deciding factor in this case. The major-questions doctrine is a legal background rule for when the question at hand has “significant political and economic consequences.” In this case, “whether returning bycatch qualifies as a ‘discharge’ of a ‘pollutant’ under the Act is a major question.”

Richardson explains that this is different from other major-questions cases because with those, it’s usually an agency asserting more power than is authorized by Congress. Here, it’s a citizen suit between private parties, and the authority that the Fisheries Reform Group seeks for the EPA would have significant political and economic consequences.

“Interpreting the Act to require the EPA to regulate bycatch would give it power over ‘a significant portion of the American economy,’” he writes. 

“If we sided with Fisheries, the immediate consequence would be to simply ban the shrimpers from throwing their bycatch into Pamlico Sound. That might sound like a small effect; yet the consequences would be vast,” Richardson writes. “For, if we adopted Fisheries’ reading of the statute and held that bycatch falls within the Act’s definition of pollutant, then that same reading would force the EPA to regulate not just all bycatch, but virtually all fishing, through the Act’s permitting scheme. The economic and separation-of-powers stakes of our ruling thus mirror those at play in other major-questions cases.”

The North Carolina Fisheries Reform Group first petitioned the North Carolina General Assembly in January 2020 by letter, expressing its concerns with how the state manages fisheries. Shortly after, group members retained Conner as counsel. 

On May 13, 2020, the group sent to the Division of Marine Fisheries, North Carolina Department of Environmental Quality, and the commercial fishing businesses a 60-day notice of intent to file a citizen suit under the Clean Water Act’s “prohibition against discharging pollutants into navigable waters and provisions regarding dredging activities.” 

The reform group filed Aug. 4, 2020, the lawsuit in the U.S. District Court for the Eastern District of North Carolina against the commercial shrimpers, NCDEQ and Division of Marine Fisheries. The group voluntarily dismissed its claim against the state, but pursued the lawsuit against the businesses. 

In an interview last week, Skinner with the North Carolina Fisheries Association, a nonprofit commercial fishing trade group, said he had spoken to a few of the defendants, and they were relieved. 

“The big problem is, and I don’t think most people look at it this way, Mr. Albea and his group didn’t sue the EPA. They didn’t sue a state or federal agency. They sued individuals who were operating legally. You’re allowed to shrimp in Pamlico Sound,” Skinner said. This lawsuit “cost those people hundreds of thousands of dollars for nothing.”

Skinner said that through the Shrimp Fisheries Management Plan, “And most people aren’t aware of this, we have to work to conserve habitat.” 

North Carolina has a little over 2 million acres of estuarine waters and a million of that is permanently closed to shrimp trawling, either because it’s a nursery area for juvenile wildlife or to protect seagrass or habitat. “We’ve closed half of our estuary already permanently,” he said.

The North Carolina Marine Fisheries Commission, the rulemaking body for estuarine and marine fisheries management, has had its Shrimp Fishery Management Plan in place since 2006. The Division of Marine Fisheries implements and enforces the measures approved by the commission. 

Depending on the type of trawl used in the Pamlico Sound, average vessel length ranged from 22 to 53 feet in 2010-2011, according to the plan’s Amendment 1. The Pamlico Sound has accounted for about 56% of total commercial shrimp landings in North Carolina since 1994, the Amendment 2 published in 2022 states.

Division Biologist Supervisor Chris Stewart, in an email response to questions about how the Shrimp Fishery Management Plan works, explained that the 2006 plan implemented several area closures and a 90-foot head rope limit in the waters that surround the Pamlico Sound. 

The head rope is the top line of the net, or trawl webbing, that is measured from the outermost mesh knot at one end of the trawl following along the line to the outermost mesh knot at the opposite end, according to the division. 

Amendment 1 established a maximum combined head rope length of 220 feet in the Pamlico Sound and convened an industry workgroup to test gear combinations that achieved at least a 40% reduction in finfish bycatch, Stewart explained.  

Under the May 2018 revision to Amendment 1 and continued through Amendment 2, fishers are required to use one of four gear combinations that achieved at least 40% finfish bycatch in all shrimp trawls, except skimmer trawls, in the Pamlico Sound and portions of the Pamlico, Bay, and Neuse rivers. 

“It is important to note that these reductions in bycatch are in addition to the 30% reduction in finfish bycatch mandated by the federal bycatch reduction device (BRD) certification process and achieve nearly twice the federal requirements for reducing bycatch,” he said. “With the adoption of Amendment 2, shrimp trawling was prohibited in crab spawning sanctuaries designated at Oregon, Hatteras, Ocracoke, and Drum inlets.”

Stewart said that that the division doesn’t have bycatch numbers. 

“While the portion of bycatch that is sold (incidental catch) is recorded on trip tickets, the portion of bycatch discarded at sea is highly variable and characterization studies completed by the division are spatially and temporally limited. Thus, more data is needed to quantify the total magnitude of bycatch in the shrimp trawl fishery,” Stewart said. “Currently, the Division is investigating the feasibility of developing a long-term shrimp trawl observer program to better monitor and quantify annual shrimp bycatch.”

This story has been updated.

Ahh, the beach walkover.

They’re as common along North Carolina’s developed ocean shorelines as seashells scattered on the sand.

These typically wooden structures built to link private properties to the beach could, like the waters at low tide, eventually fade from shores.

The North Carolina Coastal Resources Commission earlier this year submitted to the state Rules Review Committee proposed amendments that will allow coastal towns and counties, government agencies and private beachfront property owners to choose an alternative to traditional accessway structures – the beach mat.

These portable, wood-like mats can be rolled out over sand to create a surface suitable for feet and wheels. And, they may reduce debris typically left behind from walkovers damaged and destroyed during coastal storms.

The committee has given the North Carolina Division of Coastal Management an Aug. 15 deadline to submit technical corrections to the proposed rules, according to division officials.

“If the RRC staff are satisfied with DCM’s responses, the proposed amendments will be on the RRC September agenda,” division officials said in an emailed statement. “If the proposed amendments are approved, the effective date will be Oct 1^st.”

The use of beach mats has in recent years have been gaining traction in North Carolina beach towns as a way to provide wheelchair accessibility from public accesses to the shore.

Carolina Beach and Kure Beach in New Hanover County and Topsail Beach in Pender County have in recent years received variances from the commission to install matting on the beach seaward of the frontal dune, which is just landward of the beach, and to enhance handicap accessibility on the shore.

The Coastal Resources Commission in 2021 amended the rules to allow beach matting for public accesses only. Until that rule change, only elevated, pile-supported structures built out no farther than the seaward toe of a frontal dune, those at the landward of the beach, were allowed.

That limited the use of beach mats to local, state and federal governments, a decision made at the urging of the North Carolina Wildlife Resources Commission and U.S. Fish and Wildlife Service. Those agencies were concerned the use beach mats waterward of the frontal dune might adversely affect sea turtle habitat.

The latest proposed rule changes would allow beach mats on the dry sand beach without a variance from the commissions long as they’re sponsored by a local government to provide handicap accessibility to the shoreline. The placement of those mats is subject to review by state and federal wildlife agencies.

Division of Coastal Management officials explained in an email responding to Coastal Review’s questions that, under the proposed rule amendment, private property owners can install beach mats without a permit if they comply with the standards set for structural accessways. Mats must be no wider than 6 feet, no farther waterward than 6 feet from the toe of the dune, and must not require excavation or fill.

“Residential application of matting material will need to adhere to the same standards previously approved for government entities, including installation at grade and prohibiting extension onto the public trust beach,” according to the division. “We anticipate that beachfront property owners will maintain these mats because of their personal financial investment in the mats. While there will likely be some debris resulting from storm displacement and/or long-term deterioration/abandonment of some access mats, we are hopeful that the overall amount of marine debris associated with coastal storms will be reduced by replacing the wood and metal materials associated with traditional walkovers, including boards, nails/screws, wires, and other materials.”

The division is to work with local governments and local permitting officers “to monitor this closely and ensure that any mats not conforming to the State rules are brought into compliance (or they will need to go through the proper permitting process).”

While the division has not seen a boost in requests from private property owners to install beach mats, it “has seen an uptick in unpermitted use of access mats along the coast over the past few years.”

“In North Carolina we are seeing the need and the request more and more for Mobi-mats,” said Sandrine Carpentier, managing director of Mobi-mats, an outdoor portable access surfaces manufacturer in New Jersey.

Mobi-mats have been growing in popularity, she said, because they are easy to install and remove, have demonstrated they can withstand coastal storms, and are more cost efficient than traditional beach access structures.

The average cost of a beach mat is about $42 per foot in length, according to the division. Structural accessways cost on average of $333 per linear foot.

Mobi-mats come with anchoring accessories, are made of recycled plastics and are 100% recyclable, Carpentier said. Their life span ranges between seven to 10 years, after which time they may be returned to the manufacturer where they will be recycled and used to make new matting.

Holden Beach West Property Owners Association President Chad Hock is anxiously awaiting what he hopes will be a final approval by the Rules Review Commission of the rule amendments.

“We’re transitioning 100 percent with Mobi-mats as soon as we can do it,” he said.

The gated community on the Brunswick County barrier island has mats or a hybrid of wooden walkways and stairs and matting at all seven of its beach accesses after receiving temporary approval to do so by the Coastal Resources Commission and the town.

Using beach mats comes down to three factors, Hock said: cost, convenience and that they do not cause the damage structural accessways do during coastal storms.

Structural beach accesses are one of two of the association’s biggest expenditures, Hock said. It costs anywhere between $30,000 and $50,000 to rebuild wooden walkways and stairs damaged in coastal storms. Property owners in the gated community must also pay to maintain the private roads in the community.

“When a hurricane is coming, we can actually roll up our walkway, put it away and not lose our walkway,” Hock said. “It’s also better for the overall dunes in the end. The honest truth is the way that the wood and everything was done there, there was a lot more damage issues that came with it.”

One of the community’s beach mats did break loose during a storm and was found on a neighboring beach, he said. The mat, intact and with little damage, was returned to the owners association and replaced along the accessway.

Chris Driver, an association manager with Seaside Management Inc. in Kitty Hawk, was first introduced to beach mats when he began recently managing a couple of communities in Duck.

The oceanfront communities of Osprey and Sea Ridge both use mats at their private accesses to the beach.

The mats were rolled up and removed to clear the way for beach nourishment and replaced after the project was completed.

“For the most part, it just makes the walking to the beach tremendously easier for everybody, but especially elderly,” Driver said. “They’re very easy to roll up. One man can definitely do most of the work. They’re pretty easy to work with.”

Coastal management officials advise beachfront property owners to contact their local Division of Coastal Management office or local permitting officer with questions regarding the use of beach mats.

Even with the might of government, it can be difficult to force people to remove their houses that are at risk of falling into the ocean.

More and more, it’s also proving to be difficult for homeowners to find property insurance that would adequately cover, or proactively prevent, that risk.

But a Federal Insurance Office report, “Insurance Supervision and Regulation of Climate-Related Risks,” released in June shows that the insurance industry is lagging in addressing the wide range of escalating climate hazards far beyond covering oceanfront coastal development.

“More work is needed by state and federal regulators and policymakers, as well as by the private sector and the climate science and research communities,” the report said, “to better understand the nature of climate-related risks for the insurance industry, their implications for insurance regulation and supervision, and for the stability of the financial system — including for real estate markets and the banking sector.”

With alarming spikes in recent years in flood, storm and wildfire disasters, and with property insurers fleeing Louisiana, Florida and California, homeowners are increasingly paying more for less insurance, having policies canceled with no warning, or searching in vain for coverage.

“I think we’re definitely at an inflection point where insurers are pricing themselves out of doing what they’ve been counted on to do for generations,” said Amy Bach, executive director of United Policyholders, a San Francisco-based nonprofit information resource for insurance consumers in all 50 states and the District of Columbia. “This is clearly a national matter.”

One dramatic climate risk, in the form of severe beach erosion, has been on full display in Rodanthe, an Outer Banks village on the northern end of Hatteras Island where, since 2020, five oceanfront houses have collapsed into the Atlantic, scattering debris for miles in the water and on beaches along Cape Hatteras National Seashore.

Related: Federation, law center call for enforcement of existing law

Government-subsidized flood insurance policies won’t pay policyholders until the house is destroyed, nor will they cover proactive removal or cleanup costs for debris.

Although property owners in Rodanthe want Dare County to pay for a beach nourishment project, which could protect houses and restore flood insurance coverage, the county has said that the high rate of erosion — an annual average of about 14 feet — and the relatively small number of affected properties would make it prohibitively expensive.

A recently released engineering report completed for the county estimated that for a project covering 5.7 miles of beach, it would take about 3.8 million cubic yards of sand to offset five years’ worth of erosion, with a one-time cost of about $40 million.

Dare County Board Chairman Bob Woodard said during the commission’s June 5 meeting that U.S. Rep. Greg Murphy, R-N.C., indicated that it may be possible to secure federal nourishment funds.

“There are some folks in Rodanthe that appear to have some pretty strong ties to representatives in D.C. that are trying to help (the congressman) make this happen,” Woodward said. Commissioners agreed to send a letter to Murphy requesting $40 million for the nourishment project.

In a June 16 response to Woodard, Murphy wrote that a feasibility study would have to be performed by the U.S. Army Corps of Engineers that was estimated to cost “a minimum” of $3 million, before a funding request could be made.

A spokesman for Murphy, responding to an inquiry from Coastal Review in a June 26 email, said that the congressman and his team had been in touch with commissioners prior to their request, and he is continuing to discuss “a plan of action and the best way ahead” as the situation evolves.

“Congressman Murphy has been closely monitoring the conditions in Rodanthe and has witnessed the erosion firsthand,” the spokesman wrote.

Starting in the late 1980s, there had been a provision in the National Flood Insurance Program known as the Upton-Jones Act that had provided funds to demolish or relocate houses threatened by encroaching surf on an eroding beach. It lasted less than eight years.

Revival of Upton-Jones or a similar measure is currently being reconsidered by government officials and policymakers as one remedy for the Rodanthe problem. The Upton-Jones Amendment had funded up to 40% of the policy to move houses and up to 110% to demolish them. The maximum payout was $185,000 for the structure and $60,000 for its contents.

But as federal and state laws so far appear toothless to thwart houses from falling onto public beaches, escalating threats created by rising seas, intensifying rainfall and raging wildfires are exposing looming deficiencies not just in the National Flood Insurance Program, but in property insurance overall.

Climate-related risks categorized broadly as physical, transition and litigation, the report found, “present new and increasingly significant challenges for the insurance industry that warrant careful monitoring by financial regulators, policymakers, and insurance companies. The oversight of climate-related risks is also an emerging and increasingly critical topic for state insurance regulators.”

Potential revival of the Upton-Jones Act, which was repealed by Congress in 1994, was part of a broader discussion on insurance options for properties on the vulnerable Atlantic shoreline during the second virtual video meeting of the Threatened Oceanfront Structures Interagency Work Group.

Established jointly in August 2022 by the National Park Service and the North Carolina Division of Coastal Management to seek solutions for the problem in Rodanthe, the group appeared to view the flood program as a concern most relevant to the bottom line.

“And that is the question of the house is going to collapse,” Cape Hatteras National Seashore Superintendent Dave Hallac said to the online group, which included about 24 panelists and 25 attendees. “There’s not only going to be the cost of the payout … but now there is also going to be environmental damage potentially and the cost of cleanup. It is hard to image that that is going to be more than an orderly move.”

During two hours of discussion, the panel agreed that there are gaps in qualifications meeting the need for available grants, and government codes and regulations need to be updated, as well as information on erosion rates. Considering the lack of available private insurance coverage, the recently updated NFIP Risk Rating 2.0 seems to provide the best option for flood coverage. But there were questions whether a new Upton-Jones program would be more appropriate as a hazard mitigation program, rather than insurance.

Even with the updated program that is gradually increasing rates, flood insurance premiums are 50% below what they need to be, said Spencer Rogers, a retired North Carolina Sea Grant coastal engineer and geologist.

“And that’s a major issue for the program,” he said, “that any analysis that’s going to … cost additional money for the flood insurance program needs to address the money.”

As Bach, with the consumer insurance group, explained, recent rate increases have been influenced by inflation and supply-chain issues, but a primary driver is reinsurance, essentially transferring risk to another insurer to protect the primary insurer. But the newest drivers, she said, are insurance technology rating tools that provide much more detail on the risks.

With those analytic tools, California and other states have realized that calculating risks with models that are predicting the future based on the past has greatly underestimated the actual risks.

Bach said the situation currently is reminiscent to what happened in the 1960s, when property insurance for flooding became essentially unaffordable and unavailable, resulting in the federal government creating the subsidized National Flood Insurance Program, or NFIP. For a large number of homeowners, options today for property insurance could mean going into more debt by financing the insurance; paying higher rates year over year; having bare minimum insurance; or having no insurance. Insurers, she said, are “running away from catastrophic risk at the same time that they have been raising their rates.”

All Federal Deposit Insurance Corp.-backed mortgages require homeowners insurance, but even uninsured property owners without mortgages often need federal assistance after disasters.

“I think there are increasingly loud cries for there to be a version of the NFIP, basically an American disaster insurance program … in the sense that it’s an insurer of last resort for people who can’t get coverage elsewhere,” Bach said. “But I think that’s what we’re going to be seeing more (demand) for because insurers are a powerful lobby, but so our Realtors and so our builders and so our voters. So at some point a solution is going to have to be found here, but it’s increasingly looking like it’s not going to be the private property insurance system as we’ve known it.”

Bach said that the questions going forward are, what insurance program are elected officials going to come up, and what will the recipe look like? As Bach sees it, people are going to continue to want to live near beautiful coasts and forests, or stay where their family has been rooted for generations for as long as possible.

“They didn’t come to the risk,” she said. “The risk came to them while they were there.”

The Coastal Resources Commission, when it meets June 15, is expected to consider whether a rarely tried resident-led effort to extend an area of environmental concern for a Carteret County watershed should be pursued.

The Beaufort Citizens Alliance group nominated Gibbs Creek, a tidal creek watershed in the North River estuary, to be designated as a natural and cultural resources area of environmental concern, or AEC, as a way to encourage responsible development of the 86 mostly undeveloped acres surrounded by the creek, but not prohibit development entirely. The last AEC nomination was in 1994 for a site in Brunswick County, which was not approved.

The prospective developer says the nomination is an obstruction of private property rights.

The nomination was spurred by plans for the proposed 81-lot Salt Wynd Preserve subdivision. The developer went through the proper steps with the town, officials told Coastal Review, but some approvals have expired, and the family that owns 42 of the acres said they have no active contract with the developer.

If the commission approves the nomination, a management strategy can be put in place for Gibbs Creek, which is classified as SA High Quality Waters and open to commercial shellfish harvest. In this case, the applicants are asking that the watershed be afforded the same protections as outstanding resource waters, ORWs, which require an AEC that extends landward 575 feet from the normal high-water mark with a 25% limit on impervious surfaces. The nomination also proposes a larger buffer around all vegetative areas of federal wetlands.

One of the applicants, Dr. Jud Kenworthy, told Coastal Review in an interview that they feel Gibbs Creek and North River qualify as ORWs, though they’re not designated as such by the state. Kenworthy is a retired National Oceanic and Atmospheric Administration research biologist and has been a Beaufort resident since the 1970s.

“We think that this particular watershed deserves the same sort of protective buffers that an ORW gets, given the enormous social and economic value of the creek as a nursery and the North River as a recreational and commercial fishery,” he said. 

ORWs are determined by the state Environmental Management Commission and go through a different process than AEC nominations. 

Gibbs Creek watershed is currently considered a coastal shorelines AEC, which extends 75 feet landward from high water. Within that 75-foot area, there is a 30% limit on impervious surfaces and a 30-foot buffer that extends from high water where only water-dependent structures can be built. 

Kenworthy said he and the other applicants seek a bigger buffer than 75 feet, especially for the any waters deemed waters of the United States.

There are four types of AECs, though the natural and cultural resources designation is the only one that can be nominated by the public. These are areas with environmental, natural or cultural resources of more than local significance that could suffer damage from uncontrolled or incompatible development. 

Submitting the nomination begins a five-step process with the commission and Division of Coastal Management. Once the division receives the nomination, a preliminary evaluation must be held within 60 days. This took place May 8 in the Morehead City train depot. 

Related: State to hold meeting on nomination to protect watershed

About 50 attended the meeting to hear the division, the Beaufort Citizens Alliance, town staff, the commission and its advisory council members, and landowners speak. There was no public comment period.

Mike Lopazanski, policy and planning section chief for the division, explained that if the commission does not endorse the AEC nomination, the process ends. If the commission does give the go-ahead, the division will create a detailed review of the proposed site to present to the commission at a future meeting. From there, the commission will then consider the formal designation, hold public hearings and then make the final decision.

Lopazanski said that in his 33 years there, he has not seen an AEC nomination approved. 

Kenworthy, who spoke on behalf of the nominees, said North River is important as a recreational and commercial fishery resource for the community, tourism industry, hunting and wildlife. Because his property is on Gibbs Creek, across from the proposed development, he has been able to study the watershed for 22 years.

“There’s a lot of reasons that these tidal creeks need as much protection as they can get. There are extensive wetlands here that are really storing lots of carbon. They’re providing habitat for fish and wildlife. They’re acting as primary nursery areas,” Kenworthy said, adding that the creeks are also an oasis for wildlife.

“Our proposal for the AEC is really to build a buffering capacity around the edge of that landscape,” he continued, adding that the request is not to prevent development on that property, rather to put in place protections that minimize the potential effects from development. 

During her presentation, Beaufort Agrihood Development Director Beth Clifford explained that she owns about 10 acres. The other property owners, which had representatives at the meeting, are the Bertie Eubanks Neely family, which owns 42.39 acres, and the Pearl G. West Trustee that owns 33.76 acres, according to Carteret County GIS.

Agrihood put together the plans for the proposed 81-lot subdivision. “I am not interested in damaging our ecosystem. That is not my interest. The entire property was designed to maintain and actually enhance a better ecosystem,” Clifford said, adding the development plans were based on legislation currently in place.

“We will not increase more than 10% of the entire flow of water that’s on this property, less than 10% will come off of our property by the way that we have done excellent engineering work to assure the sanctity of this natural area,” she added, and it will be retained and treated before it leaves the property.

Regarding the AEC nomination, Clifford said that there will be no adverse impacts to public lands, and the area does not contain environmental, natural or cultural resources of more than local significance. She closed by saying the applicants’ intentions are “prejudicial and absolutely against private ownership property rights.”

Ron Shaw, on behalf of the Eubanks family, said the preference would be, “Immediate revocation of the current application as written due to procedural errors of facts as the information provided in the application is no longer accurate.”

He said that there is “no active purchase contract with Beth Clifford, she has failed to complete the purchase of the Bertie Eubanks Neely tract of 42-plus acres of land within the timeline of the contract. Additionally, the Eubanks family is currently entertaining new offers of purchase on that tract of land.” 

The nomination application was in response to the current Salt Wynd development moving forward, and the statements in this application “grossly and negatively affect the future sell opportunity the Eubanks family may wish to entertain,” Shaw said.

Shaw said that Kenworthy has a strong personal interest in the AEC because his home is directly across from the proposed development. 

Roberta West, trustee of the Pearl West property, read from prepared notes, which were submitted to the Division of Coastal Management.

“This all began not with a concern for nature, but with a desire to prevent this development – for the perceived personal benefit of only a few Howland Rock residents,” she said. 

West accused the applicants of trespassing on her property and questioned their scientific approach for “collecting items without an unbiased knowledgeable observer present.” West said she would have helped but, “now that I know your malicious intent, I might have shot you in the knees — I’m joking — And then I could have thrown you into that ditch. That’s just how I feel about it.”

Kenworthy told Coastal Review in a follow-up interview that he is not an opponent of development.

“What I am is an advocate for responsible development,” he explained. 

“I think I was portrayed the other day as a NIMBY (not in my back yard),” he said, referring to the May 8 meeting. “From the start of our interest in the Gibbs Creek watershed, I’ve always advocated for responsible development — not to stop it, just have it be something that is as compatible as possible with the environment to protect that watershed, and that creek and all of its value.” 

Kenworthy said the alliance had studied statutes and ordinances to find ways to protect the watershed, which is how they discovered that the public could nominate this type of AEC.

“When you think about and look at the scope of AECs and what they are, it’s another tool to use to minimize the impact of a development or any activity or any land use in a watershed that would affect public trust resources, and the status that it is now,” he said, adding he hopes the public learns that they can have a say using the right tools.

“This isn’t a fight to the death over one subdivision. It’s bigger than that. It’s what can you do as a resident or citizen? What are your options to be sure that your public trust resources are being managed appropriately? and that the folks in these state agencies are doing what they’re supposed to be doing, And I think that’s important,” he said.

He added that he did not trespass. Over his 22 years studying the watershed, he had permission from previous residents to access their property.

Next steps for the alliance are to keep an eye on the status of the development application and to continue to monitor permitting processes, and to attend the commission meeting when the nomination goes before the members.

Clifford, in a follow-up email response, told Coastal Review that the AEC nomination is “pernicious and prejudicial” and fails on merit on the two requirements for this type of AEC. 

“It does not demonstrate that the area contains resources of more than local significance and that the development is uncontrolled or incompatible and would result in major or irreversible damage,” she said. “The properties in question are part of the North River watershed and provide stormwater swales to offsite, treated and untreated stormwater to gain passage to the North River. The project will provide more surface area for treating the existing stormwater, while building the most environmentally sensitive project proposed in Beaufort to date.”

About two years ago, there was a proposed 400-unit project for the 86 acres that was denied by the town planning board. A few months later, Beaufort Agrihood Development proposed the 81-lot subdivision, Salt Wynd Preserve. 

Broken into two phases, the town and developer have been going through the approval process since late 2021. The planning board on May 16, 2022, approved the preliminary subdivision plat for Phase 1. Town commissioners approved on Oct. 10, 2022, the final plat to subdivide the 37.06-acre tract into 47 single-family residential lots. The town also approved annexations of both phases, on the condition that Agrihood had possession of the properties.

Because the final plat was not filed with the Register of Deeds within the required 60 days, or by Dec. 10, 2022, the approval expired. 

The preliminary plat for Phase 1, which had a 12-month approval, expired Tuesday, meaning that the developer will have to reapply and go through the process again for phase 1 approvals.

Beaufort town manager Todd Clark said during the May 8 meeting that, with respect to the Beaufort Agrihood Development Project, the developer did proceed through the appropriate development approvals following prescribed town ordinances.

However, the property has not been annexed because the annexation was predicated on the sale of the property to Beaufort Agrihood Development, and that sale has not been recorded. That means the review and planning processes must start over again.

Clark noted that the AEC nomination had not been presented to the town planning board or commissioners, and therefore the decision-makers neither support nor oppose the nomination.

“The three property owners continue to work together on all contractual matters,” Clifford told Coastal Review when asked what the announcement regarding the 42-acre Eubanks property means for the future of the development.

A Division of Coastal Management representative told Coastal Review Thursday that the request by the Eubanks family does not change anything regarding the nomination or its process.

The nomination and review process does not depend on who owns the property or any specific development proposal currently under consideration. The intent of any underlying property owner to pursue, or not pursue, new development does not affect this process, according to the division.

Any AEC nomination should be based on unique natural or cultural resource areas that, in the petitioner’s opinion, are deserving of additional protections above existing state rules, according to the division.

MANTEO – Advocates say would-be homebuyers and current oceanfront property owners in North Carolina have long needed clearer rules and updated information as climate change increases the risks of damage and flooding.

Two unrelated, but long-sought actions taken last week by the North Carolina Coastal Resources Commission seek to clarify two persistent issues: septic systems on the public beach, and residential flooding.

With two dozen or so septic tanks and their various parts scattered on the beaches of Cape Hatteras National Seashore last year after the collapse of three large beach houses into the ocean in the village of Rodanthe, gaps in regulations and enforcement became glaringly self-evident. Concerns also were renewed that some owners of the damaged or destroyed properties seemed to be uninformed about the risk of beach erosion, storm tides and flood damage.

The commission, which met Thursday in Manteo, voted unanimously to approve an amended septic rule. Although the changes did not address all the complexities of ocean shoreline septic issues, they specify what is allowed in repairing or moving septic systems on an eroding ocean beach, and are the first update since the recent spate of beach house collapses.

According to the updated rule, if a septic system on the oceanfront is battered by storm tide, repairs can be done in place without a permit. Otherwise, the replacement or relocation of any septic system seaward of the vegetation line needs a permit.

“The idea here is we’re trying to get them off the public beach,” Division of Coastal Management Deputy Director Mike Lopazanski said during a presentation at the Coastal Resources Advisory Committee meeting Wednesday in Manteo. The panel advises the commission on local government matters.

Ocean beaches from the foreshore to the low-tide line are in the public trust in North Carolina. That part of the beach within the Cape Hatteras National Seashore is also public land, National Park Service property. The relevant state statute defines the public trust beach as the wet sand area that “is subject to regular flooding by tides and the dry sand area of the beach that is subject to occasional flooding by tides, including wind tides other than those resulting from a hurricane or tropical storm.”

Lopazanski said the amended septic rule also directs the Division of Coastal Management to make allowances for areas impacted by hurricanes and tropical storms, where septic systems may be damaged by overwash or burial of the vegetation line. The systems, which the general statute defines as the septic tank, the pump tank and the ground absorption field, can still be repaired or relocated to restore their function and avoid impacts to the public trust beach, he said.

In decisions to repair or relocate, components are considered separate structures. If they cannot be repaired in place, they would be subject to erosion-rate-based setbacks that apply to other oceanfront structures. Septic systems will not be permitted separately when an owner seeks a permit to build in a coastal zone.

Also, National Flood Insurance Program staff clarified that public funds are not available for moving septic systems, Lopazanski said. Flood insurance payouts are not considered public funds.

A public hearing on the amended rule is expected to be held in early fall.

Flood history disclosure

After another presentation by Department of Environmental Quality Assistant General Counsel Christine A. Goebel about a petition for rulemaking with the N.C. Real Estate Commission that is proposing to add information about a property’s flood history and flood risk to the real estate disclosure form, the commission agreed to send a letter in support of the changes to the Real Estate Commission.

Outer Banks Association of Realtors Government Affairs Director Donna Creef said that the Outer Banks agents were concerned about access to flood information, some of which may be available only to engineers. Flood history also may not be available to a broker, or be limited by privacy strictures. She noted that buyers should be advised of the value of having a flood insurance policy, no matter the requirement in the designated flood zone.

Coastal Resources Advisory Committee member Spencer Rogers, a coastal erosion specialist who retired last year after 40 years with N.C. Sea Grant, recommended including the beach erosion rate in disclosures. He suggested including information about a provision in state law that requires a builder to move a property that is imminently threatened for a period of eight years. The threat could be mitigated by beach protections such as sandbags or beach nourishment. Rogers said that to his knowledge, the requirement had never been applied.

The commission agreed to add the additional information to the letter of support for the disclosure requirement changes.

The rulemaking petition was filed in January by the Southern Environmental Law Center on behalf of five nonprofit organizations and asks the Real Estate Commission to update the disclosure form with five additional questions that would require a seller or the seller’s agent to disclose the flood information.

As it’s now written, the Real Estate Commission’s disclosure statement — the sole required disclosure document by sellers to prospective buyers — does not include information about flooding.

“The current Disclosure Statement does not solicit adequate information related to a property’s flood history and flood risk,” the proposed rule amendment said. “A home that has flooded once is likely to flood again. Providing homebuyers with information about the potential flood risk that comes with a home will enable buyers to take appropriate steps to mitigate damages, including by purchasing flood insurance.”

According to the petition, North Carolina experienced 4,382 flooding events between 1996 and 2021, resulting in 72 deaths and nearly $1.7 billion in property and crop damage.

“Many North Carolina counties have experienced increased catastrophic flooding in recent years, with some experiencing multiple major flooding disasters,” according to the document. “Since 1977, North Carolina has seen 29 major federal disasters declared for events that caused major flood damage in one or more counties.”

In her presentation, Goebel said that a study in 2021, “North Carolina Coastal Hazards Disclosures in Real Estate Transactions,” by then-third-year University of North Carolina law student Anderson Tran, recommended that North Carolina build on the disclosure form used by Texas, which was called one of the best in the country.

The proposed rule changes were published in the March 15 North Carolina Register. Comments will be accepted through May 15, and the proposed effective date is July 1.

TOPSAIL ISLAND – An island-wide initiative to cut down on plastic waste is gaining traction as Topsail’s three beach towns consider banning a type of material used to make floating docks.

Topsail Beach is leading the charge in adopting an ordinance that would prohibit unencapsulated polystyrene from being used in repairs and new construction of docks.

Town commissioners there recently gave administrators the green light to create a draft ordinance for the board to consider adopting at their April meeting.

Surf City and North Topsail Beach are expected to follow suit in what would be a major step in an island-wide waste reduction campaign that aims, in part, to promote plastic waste reduction by local businesses.

If approved, the ordinance would be the first in North Carolina banning the use of unencapsulated polystyrene in docks, Topsail Beach Mayor Steve Smith said.

Polystyrene is a plastic used to make various consumer products such as Styrofoam food packaging and coolers. When unencapsulated, polystyrene can break up with weathering, scattering clumps and small fragments in waterways and on shorelines. The material can degrade into microplastic, which can easily be ingested by wildlife.

“There’s no way that that can be cleaned up,” said Kerri Allen, coastal advocate and southeast regional manager of the North Carolina Coastal Federation’s Wilmington office.

Since 2019, Coastal Federation-led crews have removed more than 2 million pounds of marine debris including abandoned boats, storm-damaged docks and homes, fishing gear, poorly managed construction sites, plastics in wastewater and stormwater discharges, and litter from coastal estuaries up and down the North Carolina coast.

Three- to four-man crews continue to pick up on average 2 tons of debris a day, Allen said.

About 75-80% of that is from docks, piers, gazebos and other waterfront structures.

Ability to choose

In 2020, the Coastal Federation launched the N.C. Marine Debris Action Plan in partnership with community groups, government agencies and academia, to clean up the clutter and promote building codes for structures like docks aimed at reducing post-hurricane and other coastal storm debris.

“As coastal property owners, anyone who has a dock or pier, you really do have the ability to choose a strong contractor that selects these best-management practices,” Allen said.

A majority of microplastics being recovered on the beaches are polystyrene beads, she said. Next month, the Coastal Federation is kicking off program where volunteers from North Topsail Beach in Onslow County down to Sunset Beach in Brunswick County will collect microplastics from the beach.

Topsail Beach commissioners during their March 9 meeting discussed what they would like to see in a draft ordinance, one that would require new docks be built using encapsulated polystyrene. Older, storm-damaged docks that have unencapsulated polystyrene would have to be repaired with encapsulated material.

A property owner must obtain a town permit to build a dock or pier.

Smith noted that most contractors are now using encapsulated polystyrene, “but the non-encapsulated is still available and so we want to ensure that as we go forward the non-encapsulated is not used.”

“There’s other issues here that we’ll have to work, but in terms of coastal management it’s taking the next step, no matter how small, it needs to be done at this point,” he said.

Carbon-copy ordinances

Surf City Mayor Doug Medlin said the plan is to essentially have a carbon-copy ordinance in each town.

“We’ll probably do something similar,” he said, adding that a unified ordinance will be discussed March 24 during the Topsail Island Shoreline Protection Commission, or TISPC, meeting.

TISPC Vice-Chairman and North Topsail Beach Board Mayor Pro Tem Mike Benson said he expects a proposed ordinance for that town will be on the board of aldermen agenda next month.

“For me it’s a no-brainer because it’s the simple thing to do and it’s going to protect the environment,” he said. “We are in favor of everything that can be done to manage plastics on our beach.”

Between the staggering amount of debris being collected through the Coastal Federation’s initiative and firsthand observations by boaters and kayakers on the water, Smith said people are willing to start taking small but important steps that will eventually reduce waste.

“Our hope is that these three towns can really create a pilot ordinance that other towns can adopt,” Allen said.

Big turnout

Earlier this year, a meeting of stakeholders — everyone from town officials from each of the municipalities, business owners, realtors and property owners — was held for those in attendance to discuss ways to reduce the use of plastics and other disposable products on the island.

Pender County Tourism Director Tammy Proctor was hoping for a turnout of about 30 stakeholders. That number surpassed 90.

They’ve decided to take a step-by-step approach, one that is less about mandates and more about positive messaging that encourages property owners and tourists to change their habits.

“Glass on the beach (is not allowed). (Tourists) pack for the day and they bring it to the beach,” Proctor said. “Those are the kinds of things that we want to raise awareness for and a sign at the beach isn’t enough. We want to reach folks before they get here. This is all of our beaches. This is all of our waterways. Let’s all of us take care of our natural resources.”

Scott Franko, who sits on the board of the Greater Topsail Area Chamber of Commerce and is the marketing director of Treasure Realty, plans to promote reusable shopping bags printed with a design of the island to grocery stores in the area and the beach municipalities on the island.

He had 10,000 bags made last year and began distributing them last August to businesses that are typical tourist hotspots.

Franko is also the man behind the BEach Clean poster with a short and to the point leave-no-trace message: use trash containers; no glass on the beach; pick up after pets; and fill in holes on the beach.

“It’s an educational program,” Franko said. “It’s an informational program. Over time we’re hoping to change consumer behavior. Over time we’re hoping to get the businesses around here to also change their behavior to change the consumer’s behavior. The goal is you want people to wanna. If they wanna do something that’s better than mandating something and to get to the point of wanna and buy-in you have to nurture a message enough and hope that a majority of the people get it.”

Each year around 11 million metric tons of plastic enters the world’s oceans, but the introduction of plastic pollution policies came to a halt in 2020, when the COVID-19 pandemic emerged. During this time, there has been an increase in single-use and disposable plastics for personal protective equipment and packaging, and medical waste, new data suggests.

The Annual Trends in Plastics Policy: A Brief released Feb. 25 by Duke’s Nicholas Institute for Environmental Policy Solutions updates its 2020 Plastics Policy Inventory, a searchable, multilanguage database of hundreds of public policy documents targeting plastic pollution around the globe. The 2020 inventory showed a steady increase in policies being introduced from 2000 until 2019.

“The overall effect of the ongoing pandemic on plastic pollution and policy implementation is not fully understood yet, but a few findings are beginning to percolate,” said the brief’s lead author, Rachel Karasik, policy associate at the Nicholas Institute, in a statement.

“The increase in plastic consumption and waste resulting from the pandemic is happening at the same time that many governments are reversing or pausing implementation of plastics policies,” she continued. “Some countries, however, have continued to address plastic pollution by passing policies that are more comprehensive — for example, targeting single-use plastics other than plastic bags.”

The research suggests that, as of 2021, more than 8 million tons of pandemic-associated plastic waste had been generated globally, with more than 25,000 tons entering the oceans, a figure that researchers say is likely to grow.

Despite the stall in public policy to combat plastic pollution on a national and international level since the pandemic began, efforts in North Carolina have continued and are building momentum, Lisa Rider, executive director of the Coastal Carolina Riverwatch, told Coastal Review. Coastal Carolina Riverwatch serves 320 miles of rivers and streams, including the White Oak River and the New River.

“Both single-use plastic and ADVs (abandoned and derelict vessels) are seeing policy improvement momentum on the local level, and we hope that trend elevates to statewide support for policies that work to reduce plastic waste, improve infrastructure and to enforce current regulatory measures that prevent marine debris,” Rider said.

About the Inventory

The 2020 Plastics Policy Inventory, which listed about 300 policies, was created to support the momentum to address plastic pollution by tracking policies introduced at the subnational, national and international levels from 2000 to 2019, officials said.

The team continued to work on the inventory over the past few years and now has more than 570 public policies listed. This brief is intended to be the first of many annual updates tracking worldwide trends and gaps in government responses to the problem.

Karasik told Coastal Review last week that the plastic policy inventory allows users to learn how governments are responding to plastic pollution.

This can help them better understand the types of plastic that become pollution “and the levers that can be pulled to mitigate their fate as marine pollutants. Users of the inventory can see where and how governments are targeting plastic, including assessing which plastic types and stages of the life cycle are targeted, and which instruments are used by governments,” Karasik said.

North Carolina and the global plastic pollution crisis

Though the inventory doesn’t focus on North Carolina, plastic pollution still a very real problem in the state.

“The plastic pollution crisis is global, so a piece of plastic waste that ends up on a North Carolina shore could have been produced or consumed in another country, just like a piece of plastic waste that is generated by a North Carolinian can end up on the shore of other countries,” Karasik explained. Because of this, “government responses to plastic pollution would ideally be comprehensive and coordinated, and the inventory is a tool that allows users to determine if they are.”

Karasik said that for coastal North Carolina the findings in the update mean two things.

“One is that plastic waste continues to increase, in part due to the ongoing pandemic, and the collective government response to that problem is not meeting the moment,” she said.

She’s hopeful that nongovernment organizations, area businesses and community groups “can help contribute to solve the problem by eliminating or limiting unnecessary single-use plastics, hosting regular cleanups in waterways, clearly communicating the risks associated with plastic consumption and disposal, and making reusable alternatives accessible for all, especially folks in underserved and low-wealth communities — especially if plastic waste is accumulating in coastal North Carolina.”

Karasick said the other point is that the inventory can be a resource for coastal North Carolinians to see what other governments, such as Virginia’s, are doing in similar situations to address plastic pollution so that they can begin to advocate for similar policies in this state.

“We are hoping that the inventory can cut down on the time it takes for policy makers and advocates to identify exemplary policies that they want passed in North Carolina, and they can fight for them,” she said.

What’s happening at the state level

Karasik noted that in North Carolina local governments cannot easily pass local laws to address plastic pollution. In 2017, Gov. Roy Cooper’s veto of House Bill 56 that repealed the eight-year plastic bag ban on the Outer Banks was overridden by the legislature. Earlier this year, she noted, there was a public push in Durham to pass an ordinance to charge a fee per plastic bag, which would not need General Assembly approval.

“Therefore, in the realm of government responses to the crisis – beyond waste management laws, which are local – those of us in North Carolina may have to rely on national laws to move us forward in addressing the plastic pollution crisis for the foreseeable future,” she said. “To be sure, there are ongoing efforts by people and groups all over the state to try to pass ordinances to reduce plastic pollution, but it is important to acknowledge the challenges here in North Carolina to passing increasingly progressive and comprehensive plastics policies within and across the state.”

There is an opportunity to learn what’s happening in North Carolina next month through the North Carolina Marine Debris Symposium. Under the direction of Coastal Carolina Riverwatch, the symposium is an annual event planned for October of this year focusing on recent developments, program ideas and best management practices for marine debris prevention, education and removal.

Organizers of the Marine Debris Symposium have expanded the symposium’s reach by adding a spring workshop focused on North Carolina plastic policies.

The NC Plastic Policy Workshop set for April 29 is to provide local planners and elected officials with policies for combating single-use plastics and abandoned derelict vessels, Rider said. The workshop includes hands-on policy development with the intent that what is learned is brought back to attendees’ communities. This limited-ticket, $15 workshop is being hosted in partnership with the Duke Law and Policy Center.

Rider said there also is a new statewide effort, the NC Plastic Reduction Coalition, that includes dozens of organizations working on plastic reduction and removal efforts from the mountains to the coast. “This group meets twice a month and most recently lead a statewide campaign aimed to bring awareness to legislators and highlight removal and prevention efforts,’ she said.

Rider also mentioned that according to the 2021 Water Quality for Fisheries Program, both recreational and commercial fisheries representatives identified plastic pollution as one of the top five water quality concerns that impact coastal fisheries in North Carolina.

And on the international level

The United Nations Environment Assembly called Wednesday a “historic day in the campaign to beat plastic pollution.” During the fifth session of the United Nations Environment Assembly in Nairobi, Kenya, heads of State, ministers of environment and other representatives endorsed the End Plastic Pollution resolution and put in motion an international, legally binding agreement.

“Against the backdrop of geopolitical turmoil, the UN Environment Assembly shows multilateral cooperation at its best,” said Espen Barth Eide, fifth session of the United Nations Environment Assembly president and Norway’s minister for climate and the environment, in a statement. “Plastic pollution has grown into an epidemic. With today’s resolution we are officially on track for a cure.”

The resolution establishes an Intergovernmental Negotiating Committee that will begin its work this year. The committee is expected to present the agreement by 2024, “which would reflect diverse alternatives to address the full lifecycle of plastics, the design of reusable and recyclable products and materials, and the need for enhanced international collaboration to facilitate access to technology, capacity building and scientific and technical cooperation,” officials said.

Karasik told Coastal Review that it was encouraging to see the international policymaking community convening to target plastic pollution with legally binding agreements.

“Our research and that of our peers has consistently demonstrated that there are gaps in the collective governance of plastics at each stage of the life cycle, that efforts to combat this crisis are often not comprehensive and coordinated, and that plastic pollution and production continues to outpace waste management capacity,” she said. “I am hopeful that this agreement fills those gaps and encourages ​continued momentum by governments, industry players, and communities to reduce plastic production, trade, consumption, and disposal — and holds them accountable if they fall short. We hope the Plastics Policy Inventory can provide insights that will help achieve and monitor compliance with the agreement’s goals.”

The Nicholas Institute provided the following list of other findings in the brief:

• Regulations, such as bans on the use of specific types of plastics, tend to be the policy tool favored by governments for addressing plastic pollution. Research shows that these policies, as well as taxes and fees, are most effective when paired with public education or outreach campaigns, but these approaches are rarely coupled on the national level.
• National policies have increasingly targeted plastic bags and other single-use macroplastics, or larger pieces of plastic, since 2017. There is also movement toward considering the benefits and harms of substituting fossil-fuel-based, single-use plastics with biodegradable or compostable ones.
• Growing scientific evidence shows that microplastics, including microbeads in toothpaste, clothing fibers and tire abrasions, have a significant ecological impact. Yet few national policies exist to address them, and there “appears to be little to no momentum in acting” at the national level.
• Policies targeting the production and use of plastics outnumber policies targeting the management of plastic waste.
• Nearly 130 countries have at least one national or subnational policy documented in the inventory. The policies are written in 34 languages.

“We really encourage folks using the inventory to pull out and review policy documents within the inventory — we have over 570 — and read them for themselves to understand what governments are and are not doing to approach plastic pollution,” Karasik told Coastal Review, adding the public is encouraged to reach out if they know of policies that not in the inventory or to answer questions.

Spot, a favorite catch for many recreational anglers, gets its name from the dark marking behind both gills. It’s a fish with a relatively short lifespan that spawns in the ocean but spends much of its life in estuarine waters, and spot can be found as far north as the Gulf of Maine to as far south as Florida.

In general, commercial harvests of spot have been on the decline since 2001, with recreational catch totals fluctuating throughout the years.

Spot is managed as a coastwide species because it is found far beyond the boundaries of any one state. The Atlantic States Marine Fisheries Commission, or the ASMFC, oversees multistate management of spot from Delaware to Florida. The ASMFC makes the ultimate management decisions, and then it is up to the individual states to meet the prescribed requirements.

Morgan Paris is the spot and Atlantic croaker species lead at the North Carolina Division of Marine Fisheries. When a fish has a multistate range like spot, collaboration across boundaries is necessary, Paris recently told Coastal Review.

“I wouldn’t say it’s hard,” Paris said. “It’s more just requiring collaboration between states and making sure that you have the open line of data transfer communication, so everyone can get what they need and can process the material correctly.”

The ASMFC’s first spot management plan was implemented in 1987. Since then, the plan has been amended a few times, and in 2014, the plan was altered to include a management technique called the Traffic Light Approach. This technique was updated again in 2020.

The Traffic Light Approach uses harvest and abundance metrics to identify thresholds that trigger certain management actions.

The 2020 Traffic Light Analysis Review of spot triggered at the 30% threshold. This is categorized as “moderate concern.” The harvest and abundance indices that the Traffic Light Analysis uses were above 30% for two of the previous three years. This triggered two specific management actions.

At a minimum, states have to reduce commercial harvest by 1% of the average state commercial harvest for the previous 10 years, and institute a 50-fish bag limit in the recreational sector. North Carolina’s bag limit is in place, and there’s a commercial season closure in effect from Dec. 10, 2021, through April 4. Management actions are required to be in place for a minimum of two years. According to the ASMFC, work on the next coastwide stock assessment will likely begin next year and be completed in 2024.

“States can still choose to have more strenuous measures in place, but at the bare minimum, you have to follow what ASMFC guidance is putting out,” Paris said.

Related: Analysis: Why NC imposed new limits on spot, croaker

Fortunately for commercial fishermen, the winter months are not the typical time for harvesting spot anyway. This was an intentional decision, said Paris. They wanted the imposed restriction to help the species without negatively impacting fishermen.

“When we did all the crunching of the numbers, we looked at when the effort was concentrated and what time of year will be the best for the actual fishermen,” Paris said.

As to what influence these trends, that’s a little harder to define, said Paris. Research on how different environmental factors may be influencing spot recruitment, or how many young are produced and survive to become juveniles, year over year is something that the ASMFC has listed as a research need.

“The environmental side of it is not a new one, but definitely one that’s becoming more relevant,” Paris said.

Dr. Troy Tuckey, senior research scientist at the Virginia Institute of Marine Science, is particularly interested in what influences population abundance for juvenile fish. For more than a decade, he has been an author on the Juvenile Fish and Blue Crab Trawl Survey, an assessment that helps keep track of fish populations in Chesapeake Bay.

It’s a fisheries-independent survey that goes out every month of the year to take assessments on population abundance of as many fish as possible. The researchers also test location-specific water temperatures, dissolved oxygen, and salinity conditions.

This survey has been conducted regularly since the 1950s, and standardized in terms of methodology since 1988.

“We don’t target any species, we just use the same gear, the same methodology year after year, and assess, measure, identify and count everything that we catch,” Tuckey said.

They use nets with a small mesh in order to help focus on juvenile fish and survey throughout the year to keep track of young populations at different points in time.

Tuckey said they have surveyed spot in areas that recorded average dissolved oxygen, temperature and salinity. This shows that spot tend to gravitate toward conditions that are not too polarized.

Year over year, spot recruitment varies because they spawn in the coastal ocean, which is that area between shore and the continental shelf, and because changes in current or wind may influence how many juveniles end up in the estuaries.

According to Tuckey, it’s not unusual to see big boom-or-bust fluctuations in a species like spot, because of how short their lifespans are. The conditions year to year will directly impact population levels.

Beyond that, there’s still a lot that is unknown about how environmental factors influence spot populations.

It’s really important, said Tuckey, to know how fish respond to environmental factors.

“We need to understand those external factors so that we can manage them better, to make sure that the populations are sustainable for future years,” Tuckey said.

State regulators are cracking down on where property owners may install artificial turf near coastal waterways.

During the meeting of the Coastal Resources Commission Wednesday, Sept. 15, Robb Mairs, minor permits coordinator with the North Carolina Division of Coastal Management’s Wilmington office, said the use of artificial turf within the state’s 75-foot coastal shorelines area of environmental concern, or AEC, and associated 30-foot buffer “suddenly emerged” this year.

The seemingly new trend has raised concerns about certain materials used to install artificial grass, the different types of material used to make artificial turf, whether those materials are pervious or not, and how their proximity to coastal waters may affect water quality.

Coastal Resources Commission rules restrict development within the 30-foot buffer to water uses, including docks, piers, boat ramps, bulkheads and accessways. There are some exceptions to the rules, such as pile-supported signs, elevated, slatted wooden boardwalks, crab shedders, decks and grading, excavation, and landscaping as long as it excludes wetland fill — unless required by permit in a shoreline-stabilization project.

However, the state does not have standards for artificial turf being installed within that buffer, Mairs explained.

Coastal AECs include wetlands, estuarine waters, public trust areas and estuarine and public trust shorelines.

The 30-foot buffer within those AECs is considered by state coastal officials to be particularly crucial in protecting water quality.

Division of Coastal Management officials this past May first caught wind of artificial turf being installed within the 75-foot AEC in Wrightsville Beach, according to Christy Simmons, division spokesperson.

“That case was resolved through an enforcement action and the shoreline buffer was restored,” Simmons said in an email.

Since then, the division has been reviewing cases in Corolla in Currituck County, Topsail Beach in Pender County and Wrightsville Beach in New Hanover County, she said. In some of those cases, artificial turf will have to be removed, at least from within the 30-foot shoreline buffer.

“In the limited enforcement cases we’ve had so far, we’ve only required removal of the artificial turf and have not assessed any civil penalties,” Simmons said.

As division permit officers are handling these cases, they’re fielding a growing interest from property owners and landscapers asking about placing artificial turf within the coastal shoreline AEC.

Part of the debate about regulating artificial turf within the AEC goes to the question whether fake grass and the materials used to install it are impervious.

Coastal Resources Commissioner Neal Andrew said at the commission’s Sept. 15 meeting that he’d seen some of the artificial turf that has been installed in Wrightsville Beach.

“It appears water does drain through this material and therefore appears to act as a pervious surface,” he said. “I personally don’t see an issue with it being outside that 30-foot range.”

Division Director Braxton Davis said it had yet to be determined whether artificial turf is pervious and that any such determination may have to be concluded on a case-by-case basis.

Mairs said the problem is that some components of artificial turf appear to be inconsistent with standards set by the North Carolina Division of Water Resources and state Energy, Mineral and Land Resources, or DEMLR, state stormwater section.

DEMLR staff say they would have to decide case-by-case whether artificial turf is pervious.

Any such determination would not preclude DEMLR’s regulations that require vegetated setbacks from surface waters in coastal stormwater permits. The rules mandate that the area within the buffer remain vegetated unless one or more exceptions in the rules have been met.

Artificial turf is not an exception.

Buffer rules in the Tar-Pamlico and Neuse rivers do not include artificial turf in their table of uses.

Division of Water Resources officials advised that artificial turf appears to contradict the intent of the rules to preserve the buffer as a function for removing nutrients.

Water resources officials have expressed concerns about the potential of small plastic fibers, and rubber or silica beads sometimes mixed into soil under the turf during installation getting into nearby waters and potentially violating state water quality standards.

Larry Baldwin, vice chair for the Coastal Resources Commission, said that if artificial turf is installed for the purpose of stormwater infiltration, design could make a difference, especially if it were to cut down on potential nutrient runoff if turf is used replace fertilized grass.

“I’m kind of torn on this in terms of what’s better for water quality,” he said.

Commissioners voted 10-1, with Baldwin dissenting, to prohibit the installation of artificial turf within the 30-foot buffer.

“I think if we’re all concerned about water quality I’m going to make it as simple for staff as possible and protect the last line of defense for our waters,” said commission Chair Renee Cahoon.

Commissioner Craig Bromby said the commission should look further into the matter.

“I think we can maintain the status quo and endorse (the division’s) interpretation, but I think this needs looking at,” he said.

The U.S. Fish and Wildlife Service is waiting on congressional approval of several draft revised maps for Coastal Barrier Resources System units, including a minor tweak of the map that includes more than half of North Topsail Beach.

The draft map for North Topsail Beach removes only about 2 ½ acres, a tiny fraction of what the town has, for years, been asking the federal government to omit from the John H. Chafee Coastal Barrier Resources System, or CBRS.

About 56% of the Onslow County town is within the system, which was established in the early 1980s under the Coastal Barrier Resources Act, or CBRA, pronounced “cobra,” to discourage building on relatively undeveloped barrier islands by nixing federal funding and financial assistance in hurricane-prone, biologically rich areas.

This means anyone who owns property within a CBRS unit, for example, cannot participate in the National Flood Insurance Program or apply for a Veterans Affairs loan.

The Fish and Wildlife Service, which manages the maps, proposes a revision to Unit L06 in North Topsail Beach to correct land that was “inadvertently added to the CBRS in 2015,” according to the agency’s website.

“This error was primarily the result of challenges in georeferencing the original CBRS maps combined with the quality of aerial imagery available to the Service in the early 2000s, when the boundary for Unit L06 was first digitized from the 1990 paper maps,” the agency states. “The Service has prepared revised maps to reflect these minor changes and technical corrections, and has determined that no other changes are needed to these maps.”

The proposed change is one of seven draft revised maps the Fish and Wildlife Service submitted to Congress earlier this month. The draft maps also include units in South Carolina and Florida.

In all, 34 acres, primarily uplands, would be removed from the CBRS and a little more than 10,000 acres, mainly wetlands and open water, would be added to the system if Congress adopts the draft map.

The maps were last revised in 2019 after then-President Donald Trump signed The Strengthening Coastal Communities Act of 2018, which amended the CBRA to create more accurate digital maps of units within the CBRS.

The new law resulted in the removal from the CBRS of nearly 80 structures within a half-mile stretch of North Topsail Beach.

For years, the town has argued development started in North Topsail before Congress adopted CBRA.

The bridge linking the northern end of Topsail Island to the mainland was built 14 years before CBRA, according to information on the town’s website. The town incorporated in 1990.

“A 1982 Onslow County zoning map also documents direct access to paved roads for all lots, with a 1981 Fish and Wildlife infrastructure review confirming ‘paved road throughout the unit,’” the website states. “This significant infrastructure – evidence of development, which should have excluded North Topsail Beach from CBRA – was missed because of Fish and Wildlife’s flawed surveying methods.”

North Topsail Beach Mayor Joann McDermon and Interim Town Manager and police chief Bill Younginer did not return a call seeking comment.

The town has garnered support from congressional delegates who have in years past introduced legislation that would remove much of the town from the CBRA designation.

Sen. Thom Tillis, R-N.C., and Rep. David Rouzer, R-N.C., last introduced bills in 2019 to revise the boundaries of Unit L06, but neither bill made it past congressional committees.

A spokesperson for Tillis did not respond to requests for comment.

A statement from Rouzer’s office indicates his continued support of the town, saying he was proud to join Rep. Greg Murphy, R-N.C., in introducing legislation “to fix this problem.” Murphy replaced the late Rep. Walter B. Jones, who previously introduced legislation in support of the town, in a special election in 2019.

“The current CBRA lines must be revised to properly reflect the intent of the law and to allow for the disaster preparation work that all of Topsail Island deserves,” Rozer stated. “While it is a very heavy lift, we will continue to work to try to get this language cleared for passage in both the House and Senate during this Congress.”

More than two years have passed since the Army Corps of Engineers announced that only sand pumped from federal projects could be placed in Corps-maintained dredged material disposal sites, leaving local governments, marinas and private property owners the challenge to find land on which to put sand removed from clogged waterways.

Since then, state and Corps officials have been working on a plan to identify nonfederally maintained sites, information that may be rolled out incrementally in the months leading up to the release of the first phase of the plan, according to Todd Horton, the Corps’ deputy chief of navigation.

“Our goal right now is to have our entire project completed by February 2022,” Horton said earlier this month in a meeting hosted by the North Carolina Division of Water Resources.

He said that, to date, the Corps has identified a little more than 20 nonfederal placement sites, the majority of which were initially constructed on state-owned property by the Corps to be used as disposal areas. At some point those properties were turned over to private owners.

A geographic information system, or GIS, database has been created to map each site and include information, such as how much sand a site can hold, and will eventually be placed on a website hosted by either the Corps or the state.

That database is part of the state’s dredged material management plan.

As part of that plan, the Corps will evaluate the dredging needs of nonfederal users for the next 20 years.

The Corps’ Wilmington District is currently gathering that information, calling marinas to assess where they’re dredging, how often they’re dredging and where they’re placing dredging material.

“As of now we’ve contacted 78 marinas requesting data of which we are about 65% complete collecting data from those sites,” Horton said during the June 9 meeting.

The Corps has identified 75 other entities with marine facilities, including homeowners’ associations and hotels with large marine docks, to contact.

“We haven’t reach out to those 75 facilities yet, but we will in the next few weeks,” Horton said.

Wilmington district officials announced in late 2018 that sand dredged in nonfederal projects could no longer be placed in Corps-maintained facilities.

That decision was made based on the Corps’ February 2017 guidance to conserve space within its disposal sites after millions of cubic yards of material dredged from nonfederal projects were placed in a single dredged material placement facility in Galveston, Texas.

The Corps manages more than 200 dredged material placement facilities totaling more than 5,000 acres in North Carolina. Some of those sites have not been used while others are nearly full.

It is unclear exactly where and how material from nonfederal dredge projects are being disposed.

Such work has to be permitted by the state Division of Coastal Management. The terms of a permit include where material is to be placed.

That information was not available in time for publication of this report.

In Carteret County, the county’s shore protection office has been creating its own list of potential disposal sites.

“We’re looking for properties that have enough land to take all this material,” said Greg “Rudi” Rudolph with the county’s shore protection office.

Potential disposal sites have to meet certain criteria, including road access to the property, proximity to the channel being dredged and capacity. And, the property owner has to be willing to take the dredge spoil free of charge.

“In return, it’s theirs,” Rudolph said.

For one of the county’s more recent dredging projects in Old Ferry Channel in Bogue Sound, dredge spoil was placed on a little more than 1 acre of private property off Bay Shore Drive in Cape Carteret.

The project completed in early April dredged more than 24,000 cubic yards of sand from shoaling hot spots along a little more than 11,300 feet of the channel. The dredged material was the equivalent of about 2,100 dump truck loads.

Under the Coastal Area Management Act, or CAMA, major permit terms, silt fences had to be placed on the property to catch runoff. Material could not be piled higher than 6 feet above grade and then had to be seeded.

In all, Carteret County has completed six dredging projects – three large projects dredging more than 1,000 cubic yards and three small projects of about 1,000 cubic yards, Rudolph said.

The county has relied on grants from the state’s Shallow Draft Navigation Channel
Dredging and Aquatic Weed Fund to help cover the cost of dredged material disposal.

Rudolph said he applauds the creation of regional disposal facilities, the need of which is only going to grow as building continues in coastal areas.

Carteret County has 80 miles of oceanfront, 1,738 miles of estuarine shoreline, 506 square miles of land and 834 square miles of water.

“So, we’re more water than land,” Rudolph said. “There’s only so much land so possibly more of the vacant land around here is going to be used more in the next five to 10 years.”

Another coastal town is taking steps to clean up abandoned and derelict vessels, or ADVs, in its waterways.

Last month, the Jacksonville City Council approved an ordinance to tackle the more than a dozen ADVs that are a threat to navigation, a possible source of pollution in the New River and a potential hazard during the next storm.

Madison McCann and Aaron Houran, city water quality technicians, presented the ordinance amending city code dealing with motor vehicles during the council’s Oct. 20 meeting. The two attended conferences and consulted with other towns with their own ADV ordinances, including New Bern, Manteo and Beaufort.

“We have about 15 vessels in our city limits right now that we believe meet the criteria as an abandoned or derelict vessel and these vessels present a multitude of issues for the city of Jacksonville,” McCann told the council. “One being that they’re a navigational hazard, especially in the narrow and shallow waterway of the New River that flows through downtown Jacksonville. They are an overall aesthetic problem for downtown Jacksonville, while also threatening the valuable residential and city-owned property located in the area.”

She said another area of concern is that the boats are often grounded on shoreline areas, or resting on the bottom, which pose a threat to the sensitive aquatic habitat in the New River. “And lastly, and most importantly, this is an issue we’ve seen persist and worsen with every storm event, adding additional vessels in our waterways, or damaging the vessels we currently have right now.”

McCann and Houran, in a follow-up email, told Coastal Review Online that ADVs have been a regular nuisance and a growing problem on the New River.

“From an environmental conservation approach, we were concerned with the marine debris and hazardous liquids often associated with ADVs. The New River has come a long way from the degraded habitat it once was in the 1990s and we wanted to see the environment continue to thrive and repair,” they wrote. “We wanted to address the issue of ADVs but found there was little we could do on a local level because of a lack of legislation. In 2019, we learned about House Bill 429 through an Abandoned and Derelict Vessel workshop hosted by the North Carolina Coastal Federation. We were excited to learn that we were being given the authority to write ordinances tailored to addressing vessels within our municipal limits.”

Now that the ordinance has been approved, the city is in the process of gathering information about the vessels and assessing what it will require to remove them.

“From there, it will be very similar to the approach taken for abandoned cars on the side of the road. The vessels will be tagged and we will make every effort to contact the owner. If the owner fails to respond in a certain amount of time, or if the owner responds and relinquishes the vessel, it will be removed,” they wrote.

They emphasized that the goal is to work with owners to bring the vessels into compliance with the law. “Our goal is not to remove any and all vessels, just simply push for all boats on the New River to be in safe working conditions and safe locations so that all may use the river.”

McCann explained during the meeting that this is not a new problem.

“The fact that abandoned and derelict vessels have plagued the North Carolina coast for some time has led to some local and state legislation regarding abandoned and derelict vessels,” she said.

The North Carolina General Assembly in 2019 passed House Bill 429 giving municipalities power to enact and enforce ordinances addressing ADVs in their waterways. McCann said the proposed amendment presented to the city council was drafted using those general statutes and local codes.

The amendment defines an abandoned vessel as a vessel that has been relinquished, left or given up by the lawful owner, without the intention to later resume any right or interest in the vessel. The vessel must meet eight conditions to be considered an ADV, including having improper, nonworking or no anchor light, unable to be used for navigation and in danger of breaking its mooring, sinking or taking on water.

Houran reviewed numerous vessels with the city council during the meeting, pointing out what makes the vessels qualify as an ADV, including one named 100 Proof.

“When I first started here (more than two and a half years ago), this vessel was located along Shoreline Drive tied to some pylons during Hurricane Florence,” Houran explained. “It actually broke its mooring and was later found drifting, dragging anchor back and forth in Wilson Bay.”

He said it was there for three to four months before being secured. The interior is exposed to the elements, there is no working anchor light, and the vessel has been neglected or partially dismantled.

Another vessel mentioned is a large shrimp trawler just north of Goat Island.

While trying to gather information about the trawler, Houran said, “The one thing I heard over and over again, is I don’t know how long it’s been there,” adding that it’s been there at least five years. “It’s almost been sort of a landmark on the water.”

McCann said that, as city employees, they take pride in promoting navigational safety on the New River, but the vessels moored in the navigable channel outside of Laguna Bay make it difficult for recreation and commercial use.

“Lastly, from a stormwater perspective, these vessels continued to threaten the city’s efforts to rehabilitate the New River and the sensitive marine habitat that we fought to bring back to the city of Jacksonville,” she said.

Regarding funding sources to support removing ADVs, McCann said the city is in contact with the North Carolina Wildlife Resources Commission and the North Carolina Coastal Federation.

“They’re working to determine if our vessels are qualified for removal through their three funding sources,” she said, adding that two of the vessels are currently on the list for removal.

“Our hope is that working with these entities, they will not only offset some removal costs for the city, but also help us through the process,” she said, noting that the coastal federation had advised that it would be willing to help secure grant funding through the National Oceanic and Atmospheric Administration’s marine debris program.

Sarah Bodin, a coastal restoration specialist with the federation, called the city’s action “an important milestone” in addressing the problem of abandoned and derelict vessels and the threats they pose to water quality, the economy and local habitats.

City Manager Richard Woodruff explained to the council that just as with housing issues, there must be a legal process.

“We have worked to create a process very similar to what you do with any code issue on land. It is identified in the actual ordinance,” he said. “You can see the highlights and the notification must be given, action must go through a series of legal processes, relative to the number of days the party has to respond and correct any of the violations.”

Woodruff said one difficult aspect is that with some of the vessels, the control numbers and registration numbers have been removed, making it difficult to identify an owner.

“In that case, the ordinance does require us to board the vessel to placard the vessel notifying anyone that it must be corrected within a 10-day period. We will make every effort we can to research the records to determine who the owner is,” he said.

Woodruff said the city sees this effort as a continuation of the Clean and Green Jacksonville program, which has resulted in 134 vacant and dilapidated houses being removed.  “So this is just another step in cleaning up the appearance of the city.”

McCann and Houran wrote in the email that the city is just beginning to assess the removal considerations and costs for the appropriate vessels. “There are multiple agencies that we are hoping to utilize to help with removing several of these vessels.”

McCann and Houran described the New River as a rich and diverse estuary. The city wants to continue to promote boating, they said.

“Our goal with this new ordinance is to provide residents and tourists with the best possible experience for generations to come. With that being said, we want to work with the owners of these vessels, allowing them every opportunity to either claim, remove, or bring these vessels into compliance with the law,” they said in the email, adding that the ordinance was the result of the work of multiple city departments and representatives.

A Maryland couple’s ongoing challenge to North Carolina’s coastal regulatory authority, a case that a federal judge dismissed earlier this year, is pitting private property rights against decades of state coastal protections and reams of scientific studies on sea level rise and erosion.

The couple’s attorney says that information isn’t relevant to the federal appeals court case.

Michael and Cathy Zito of Timonium, Maryland, sued the state Coastal Resources Commission in 2019, alleging a taking of their property without just compensation. The CRC denied permits the couple had sought to rebuild a beachfront home destroyed by fire. The couple appealed after Judge James C. Dever III dismissed the case in March.

In late July, the Southern Environmental Law Center, representing the North Carolina Coastal Federation, filed with the 4^th Circuit Court of Appeals an amicus brief supporting the commission’s regulatory authority. The federation is publisher of Coastal Review Online and has for decades advised policymakers on barrier islands’ natural processes and advocated for public access to beaches.

“The Coastal Federation seeks to protect the Coastal Resources Commission’s long-standing authority to manage the oceanfront in order to protect the right of the public to have access to sandy beaches that aren’t being destroyed by seawalls and over shadowed by houses that are about to fall into the surf,” said Coastal Federation Executive Director Todd Miller. “If successful, this case would undermine the ability of the Commission to protect the existing rights of the public to use our oceanfront beaches. The need to regulate oceanfront development so that it does not destroy our beaches grows more urgent each decade as increases in extreme weather and sea level occur.”

The federation had sought to intervene in the original case but the judge in dismissing the case denied the federation’s motion as moot.

The Zitos had sought to rebuild on the original house’s footprint on East Seagull Drive in Nags Head, where erosion eats away about 6 feet of beach each year. The CRC denied permits for the couple’s planned new home because it would not meet oceanfront setback requirements. The standard setback line for the property is 180 feet from the first line of stable vegetation. The Zitos’ planned home was about 12 feet landward of the static vegetation line.

The Zitos claim the commission’s decision left them with “an empty and useless lot,” according to court documents.

A spokesperson for the CRC said that because the case was in active litigation, staff would not comment for this report.

The Zitos are represented by the Pacific Legal Foundation, which characterizes the case as a fight against the state government’s “blurred lines on property rights” and a taking without just compensation.

“We sued in federal court because our primary claim is that the Commission has violated the Zitos’ federal constitutional rights. That claim is decided by federal law, not state law, and is thus appropriate for federal court adjudication,” J. David Breemer, senior attorney with the Pacific Legal Foundation, said in an email response to Coastal Review Online.

The foundation last week filed its response objecting to Southern Environmental Law Center’s addendum and a reply brief on the substance of the Zitos’ appeal.

Ramona H. McGee, a staff attorney with the law center, said the commission’s decision upholds North Carolina’s longstanding coastal protections and recognizes natural coastal processes.

“If there is anything to blame for a taking of property in this situation it is the Atlantic Ocean and natural processes. It is not an act by the Coastal Resources Commission,” McGee told Coastal Review Online last week. “Sea levels are rising, erosion is happening and those natural processes, naturally eat away at the coast and that’s what’s happened here. If this sort of takings lawsuit could go forward and be successful, it would undermine efforts on the part of responsible government agencies and others to protect natural areas and to prepare against continued erosion and the results of sea level rise,”

Although the Zitos did not object to the federation’s amicus brief, they filed a motion opposing as irrelevant an addendum that included all documents, legal decisions, study reports and scientific journal articles cited in the brief.

“The amicus material is not relevant because it has no bearing on the issue before the appellate court,” Breemer said. “The only issue is whether the commission is ‘immune’ from the Constitution’s requirement of just compensation for a taking. Submitting 500 pages of material that has nothing to do with that issue burdens the court and wastes everybody’s time.”

McGee, with SELC, countered that the material is highly relevant to the court’s decision.

“This really gets at how differently the Zitos view the case from the Coastal Federation and even the Coastal Resources Commission,” she said. “The Zitos’ takings claim has to be considered in the broader context of our state’s dynamic coastal processes and attendant coastal protections that have been around for decades. The Zitos instead are trying to frame their whole case as being really just this one private takings claim when, in reality, the whole point of our brief and these materials that we’ve offered to the court is to show that this case isn’t just about that one takings claim. This case has far-reaching ramifications.”

She said the Zitos are asking the court to “put on blinders to the broader context” and that the state’s entire coastal regulatory scheme would be “severely undermined” if the Zitos were to prevail.

Ocracoke Island has long been famous for its charming cottages with front porches and flowers in tiny yards, tucked alongside narrow, tree-shaded roads winding through the village. But there’s nothing charming about being slammed with 7 feet of flood water.

In the wake of the devastation in September 2019 from Hurricane Dorian, Hyde County is seeking funding from the Federal Emergency Management Agency to elevate 114 houses in Ocracoke Village to about 8 feet above ground elevation, a proactive measure that will provide more resilience to the historic fishing community and popular tourist destination.

“It will look a lot different,” county manager Kris Noble said in a recent interview.

But Noble knew from the moment she saw Dorian’s wrath from the air what needed to happen for Ocracoke to recover: Its buildings had to be raised above flood waters.

“As we were flying over, it was basically just water and rooftops,” the manager recalled of the day-after storm scene. “The only dry land was the ball field.”

Noble, a Hyde County native, remembers when Swan Quarter, the county seat on the mainland, was flooded nearly as badly during Hurricane Isabel in 2003, when the courthouse, the firehouse and numerous homes in the unincorporated community — all barely above sea level – were inundated. Since then, she said, residents exhausted by fear of flooding, adapted to the changes in the interest of safety.

“Now when you ride through the village of Swan Quarter,” Noble said, “you see lots of elevated houses.”

Ocracoke Village, situated on the southern end of the Outer Banks between Pamlico Sound and the Atlantic Ocean, has had its share of storm damage over its centuries-long history. But no one alive today has ever seen the water come up so high so fast.

Nearly every single property, including vehicles, suffered flood damage. Restaurants, inns, bed-and-breakfasts, motels, retail stores, outdoor recreational sites — all were affected. Cape Hatteras National Seashore had severe damage to its staff housing and National Park Service infrastructure, although fortunately the park’s famous Ocracoke ponies escaped unharmed.

“The ponies are like the people here,” Noble said. “They’re resilient.”

The state Department of Transportation also had damage to its ferry infrastructure and N.C. 12, the sole highway on the island, was severed and closed until Thanksgiving.

Noble said that the county had estimated that there was $30 million in property damages, not including the park service and NCDOT. After herculean cleanup efforts and complications from COVID-19, the village was able to recover enough to reopen to visitors this summer. Still, she said, between the losses in property and revenue and safety restrictions due to the pandemic, there are a number of businesses and attractions that have closed for good or have had to delay reopening.

Still, she said, the community has endured months of terrible stress and managed to restore and maintain much of the village’s character.

“The face is changing, but the face is beautiful,” Noble said. “It’s more attractive. It’s just been a really hard process.”

Chris Hilbert, with Wilmington-based Holland Consulting Planners, or HCP, said in an interview that he had first worked with Hyde County on housing mitigation work about 20 years ago. Often, he said, it can take two to five years to get the funding from FEMA. In the meantime, some homeowners find alternate sources of money to fix up their homes.

After Hurricane Isabel in 2003, 150 applications were submitted for grants to elevate or acquire properties on the mainland. Acquisitions are less common because of the high property values. Of the 50 applicants that were approved, 29 or so were elevated, including Noble’s house, he said. Mainland Hyde County, especially Swan Quarter, had also been hit hard in Hurricane Floyd in 1999, Hilbert explained. So, with damages inflicted again during Isabel, the repetitive losses made the grant money flow.

Additional applications were submitted by Hyde County in 2011 after Hurricane Irene, which flooded the Scranton area of the mainland. Since then, about 20 homes were mitigated, he said.

Then Hurricane Matthew came through in 2016, but Ocracoke felt the impact instead of the mainland. Although 12 applications for mitigation were submitted to FEMA, he said, the agency never got around to telling the county if it was even eligible.

Next, in 2018 there was Hurricane Florence, which bypassed Ocracoke for the mainland, again near Scranton. The county hired HCP in January 2019 to help with the application process.

Hilbert said he was in the process of trying to secure FEMA grants for Florence-damaged properties when Hurricane Dorian hit Ocracoke. A letter of interest had already been submitted to the agency by Hyde County, which turned out to be fortunate because it allowed the county to immediately set up an application process for Dorian mitigation for island properties.

Since the Florence applicants had not yet been submitted to the agency, N.C. Emergency Management, which administers FEMA funding in the state, was able to add Hyde County’s Dorian applications to the Florence applications.

An HCP housing inspector went to the island within a week to assess the situation and help the county secure state disaster recovery funds, Hilbert said June 30 in an email. The consultant returned later to photograph properties for the applications and provided a base map.

Hilbert said that the housing mitigation grants require approval from the state and FEMA, which explains why numerous locations are still dealing with Matthew grants.

“The really positive news is the State is finishing their review only 9 months after the actual event,” he wrote, “so the FEMA process must begin now, which will include environmental review and approval of 75% funding. The State will then pick up the other 25%.”

Hilbert said he can’t predict how many applicants will be approved, but in general, FEMA has been prioritizing lowest elevations and repetitive-loss properties. With many cottages at ground level, that should make Ocracoke a prime candidate.

Ocracoke, which has a year-round population of about 900, is not alone in having so many homes at sea level, he said. Between Hurricane Hazel in 1955 and Hurricane Fran in 1996, there were not many big storms on the East Coast. But Hazel did inspire a lot of construction of cinder block on slab houses, such as those in Atlantic Beach and Carolina Beach. The thinking was they could withstand flood waters, except they were still built barely above ground level. Even after Floyd’s massive flooding, people were still thinking it was a “once-in-a-lifetime” event, Hilbert said.

New houses on Ocracoke started being built on pilings in the 1990s, but having many more houses elevated will undoubtedly change the cozy feel in the village. The trade off, of course, is safety.

“That’s really what Ocracoke is looking at,” Hilbert said in the interview. “It’ll be fairly transformative.”

Considering the island’s location on the edge of the continent sticking out into the Atlantic Ocean, he said, Ocracoke has been fairly lucky to have dodged the bullet for as long as it did. And even when villagers wanted to raise their homes, until recently, there was no funding available to help them.

“It’s been a long time coming, but it’s almost been just a waiting game,” he said. “There was no government program that could provide money until they could show the need.”

Amy Howard, a native islander who manages her family’s business, The Village Craftsmen, on Howard Street, said that every one of the family’s buildings flooded to some extent, but her house on the corner got hurt the worst.

Built by her grandfather in 1957, Howard said the house was stripped down to three walls and subfloor. It has now been rebuilt and is standing 12 1/2 feet in the air, waiting to be permanently placed on pilings 8 feet above ground level.

But Howard, 48, said that while it’s a relief to not have to worry about flooding, the idea of elevated houses takes some getting used to “because I love the little low houses … running up to somebody on the porch … that community feel.”

The fact is, she said, most Ocracoke villagers know the risks of living on their island, and don’t see it as any more dangerous than living in other places prone to earthquakes, tornadoes, landslides or wildfires.

“I think most of us feel fairly optimistic,” she said.

Noble agreed that the community is looking forward, not back.

And if another storm comes this hurricane season?

“We’ll batten down the hatches,” she said. “I pray we get a break for a few years.”

The National Audubon Society has filed a lawsuit against the U.S. Department of Interior for its rule reversal that lifts limits on where sand mined from federally protected areas may be placed and funding sources for such projects.

The lawsuit takes to task U.S. Department of Interior Secretary David Bernhardt’s decision late last year to allow federal funds to be used to pay for dredging sand within Coastal Barrier Resources Act units and then placing that sand on beaches outside of CBRA zones for shoreline stabilization projects.

“I think we have good reason to believe that these types of sand mining operations can really destroy habitat and the water quality.”

Karen Hyun, National Audubon Society

Routine sand mining within those zones will weaken coastal buffers that are the first-line defense against storms, destroy sensitive habitat crucial to a number of species, and impact water quality, said Karen Hyun, National Audubon Society’s vice president of coastal conservation.

“I think we have good reason to believe that these types of sand mining operations can really destroy habitat and the water quality,” she said.

Bernhardt’s decision overturned a 1994 Interior Department solicitor’s opinion that concluded that in order to qualify for federal funds, sand in a CBRA (pronounced “cobra”) zone had to stay within that CBRA zone.

Proponents of the rule change argue that it makes good economic sense because, in many cases, mining sand from these zones is more cost effective than pumping sand from offshore borrow sites to renourish beaches.

But a half-dozen people, all former committee staff to Republican and Democrat members of Congress who established the act, say the change flies in the face of what the founding members of CBRA intended when they established CBRA and the Coastal Barrier Improvement Act, or CBIA.

Those former staff members, including Robert Hurley, who was chief of staff for the late Sen. John Chafee of Rhode Island, sent a letter July 8 to Bernhardt calling for him to revoke his decision.

“It’s just totally inconsistent with the intent of the law and the reading of the law,” Hurley said. “The intent of the law as the people who wrote is you can’t use a unit in the CBR system as a borrow pit for beach replenishment projects outside the unit. That’s inconsistent with the purposes of the act.”

The three-page letter points out an instance in 1994 where the Army Corps of Engineers requested to dredge nearly one million cubic yards of sand from a CBRA to renourish a nearby beach outside of the system.

The assistant solicitor for Fish and Wildlife at that time declined the request, saying that the act specifies federal funds may be used only for certain activities within CBRA and that sand mined from a CBRA must stay within that zone in order to qualify for federal funds.

“There are a number of very limited exceptions that would allow aids to navigation, things of that nature, projects for studying the management and protection of wildlife resources, but it was never, ever contemplated that these areas could be used as mining areas for beach nourishment projects outside the system,” Hurley said.

Congress passed CBRA in 1982 to discourage building on relatively undeveloped, storm-prone barrier islands by cutting off federal funding and financial assistance, including federal flood insurance, to everyone from developers to property owners in those areas.

CBRA was also established to minimize the loss of human life, wasteful spending of federal funding, and damage to fish, wildlife and other natural resources associated with coastal barriers.

When CBRA was established, more than 450,000 acres were included in the system. Today, about 1.3 million acres are within the system and an additional 2.1 million acres are in conservation zones identified as “otherwise protected areas,” or OPAs.

Limiting federal spending in these areas has saved $9.5 billion in taxpayer dollars over the course of 25 years and will save anywhere from $11-$109 billion over the next 50 years, according to a 2019 study published in the Journal of Coastal Research.

Researchers at the University of North Carolina at Chapel Hill released a study June 30 that indicates the act has successfully discouraged development.

Audubon’s lawsuit, which was filed July 2 in U.S. District Court for the Southern District of New York, argues that the so-called excavation rule “has potentially subjected vast swaths of previously protected coastal areas to federally-financed sand mining and dredging.”

“Indeed, a database maintained at Western Carolina University has identified over 1,770 instances of beach renourishment in states along the Atlantic and Gulf coasts – the precise type of project that may now be federally funded under the Excavation Rule even when sourcing from System units.”

Audubon further argues that “flagship” species, including the endangered piping plover, American oystercatcher and least turns, heavily rely on inlet ecosystems within the CBRA. Flagship species are the bellwethers for more than 300 other species, Hyun said.

“These areas provide really important habitat for a lot of those species,” she said.

And, there is no alternative to the CBRA for many of those species because development and engineering outside of the system boundaries has “left the System itself as the last best habitat,” according to the lawsuit.

Both the authors of the letter and the National Audubon Society also question the time in which Bernhardt made his decision without granting public notice and why the public did not get the chance to comment before he announced that decision.

Bernhardt made his announcement Nov. 4, 2019, six working days after the Associate Solicitor responded to inquiries from congressional leaders.

“In looking at what the interior department decided to do, they did it within six days,” Hurley said. “It’s mindboggling that they came up with this interpretation.”

The decision overturns 25 years of “straightforward adherence to the statute came with no opportunity for public review or comment,” the letter from former congressional staffers states.

Since Bernhardt’s decision last year, Audubon “has been forced” to hire a consultant to monitor, research and comment on development projects that would not have been eligible for federal funding before the rule reversal, according to the lawsuit.

The initial focus on proposed and potential projects has been in states including North Carolina, South Carolina, New Jersey and Florida.

The lawsuit asks the court to declare the excavation rule is in violation of the Administrative Procedure Act and National Environmental Policy Act; prohibit the defendants, which include the U.S. Fish and Wildlife Service, from issuing consultation opinions implementing the excavation rule; cover Audubon’s legal fees associated with the suit; and “grant any other relief” deemed appropriate by the court.

Harkers Island property owners are one step closer to being able to challenge a state environmental permit that authorizes the construction of a fixed-span bridge from the mainland to the Down East island.

Superior Court Judge Charles Henry last month overturned Coastal Resources Commission Chair Renee Cahoon’s May 2019 denial of four property owners to appeal the permit issued to the North Carolina Department of Transportation.

In his April 24 ruling that grants the property owners’ the right to judicial review, Henry concluded their allegations of Coastal Area Management Act statutory and rule violations were not “frivolous” as determined by the commission.

Larry Baldwin, who is vice-chair of the CRC, his wife, Elizabeth, and neighboring property owners Hollis and Carol Batson argue the project did not receive a proper environmental review and that the bridge design would critically impact local waterways, shorelines and public trust areas.

“In a nutshell the DOT design is horrible in my viewpoint based on my consulting background, based on my experience with CAMA rules and regulations,” Baldwin said in a telephone interview. “We’ve got polluted waters on the back of our properties and that’s due to the current bridge, and the design they’re putting in doesn’t even address those issues.”

New Bern-based attorney Clark Wright, who represents the Baldwins and Batsons, filed a petition on Tuesday with the Office of Administrative Hearings requesting the case be assigned to an administrative law judge.

The petition also asks for formal mediation between the parties, which include the property owners, North Carolina Department of Environmental Quality and CRC.

“All we’ve asked for during these last three years is to sit down with DOT for a forced mediation arbitration,” Baldwin said.

The department plans to replace the Earl C. Davis Memorial Bridge, a swing-span bridge, and Bridge No. 96, both of which connect the Straits township on the mainland to Harkers Island. The bridges are more than 45 years old.

NCDOT selected from one of five alternative replacement options in 2017 – a fixed-span bridge with a 45-foot vertical navigational clearance through the channel.

The swing bridge will be removed. The other bridge will remain and used as a pedestrian access to the Straits Fishing Pier.

The latest estimated cost is $39.9 million.

The project was initially expected to go out for bids this summer, but department officials are projecting a $300 million budget shortfall this year, a result of the pandemic, which has caused traffic volumes to decrease significantly, according to the state transportation website.

“At this time we expect to award a contract in September,” Lauren Haviland, NCDOT communications officer, said in an email. “It is important to note, we cannot award a contract if litigation is ongoing or we are below the cash floor (when that happens we can’t enter into new contracts).”

In the May 12 petition, Wright states that his clients are “ready, willing and able” to participate in an expedited hearing so that a judge may issue a decision by Sept. 30 or soon thereafter.

The state Division of Coastal Management’s issuance of the CAMA major permit May 1, 2019, deprived the Baldwins and Batsons of protected property rights, the petition states.

Their properties back up to Janes Creek, a shallow estuary that is not designated by the U.S. Fish and Wildlife Service as primary nursery area, but a waterway, Baldwin contends, functions as such.

The Baldwins have lived in their home on the island full time for the past 20 years. The Batsons, according to the petition, do not reside on their island land, “but use and enjoy the same.”

The two couples placed common properties that border their lots into a homeowners association, which is listed on the petition as Baldwin Batson Owners Association Inc.

“There’s a lot of precious coastal resources out there and water quality issues,” Baldwin said.

The impact to those resources were not properly addressed in a review process, the property owners say.

An environmental impact study was not conducted. NCDOT instead conducted an expedited review, one that was completed in five months.

The 1968 NCDOT right-of-way causeway has caused sedimentation, erosion, shoaling, and ebb and flow reduction in the creek’s watershed, the petition states.

In 2017, the creek was permanently closed to shellfishing.

Janes Creek also drains about 25% of the island.

The proposed bridge design would route stormwater runoff into pipes that would dump into the creek, which would increase the potential for flooding, the property owners argue.

Impacts to Janes Creek, the Straits, a channel that runs about 1½ miles north of the island, and their estuaries on the southern end of the proposed bridge “represent a serious and material failure of the permitting review process,” the petition states.

The design of an 8- to 20-foot-high concrete bulkhead on the island side of the proposed replacement bridge does not take into consideration potential impacts of adjacent erosion, shoaling, sedimentation and storm damage to public trust areas, riparian and littoral areas, and tidal flow blockage, according to the petition.

The property owners argue that the CAMA major permit was issued erroneously because portions of their lots were not condemned by NCDOT until four months after the department applied for the permit in December 2018.

“That’s on the (CAMA) application,” Baldwin said. “They sign it that it’s truthful. At that point in time they didn’t own anything on our property.”

They also argue that the department should align power lines that will be relocated with the new bridge in the right-of-way. The current design zig-zags above-ground power lines five times across the project area, which would not minimize impacts because all of 15 existing poles and lines “have been, or will be, replaced or relocated,” according to the petition.

The property owners have had on-again, off-again informal mediations with NCDOT and the CRC, first after they appealed on July 3, 2019, the CRC’s decision in Carteret County Superior Court.

They filed for a temporary restraining order in November 2019 in an effort to stop utilities construction NCDOT initiated on and around their properties.

As a result of that filing, NCDOT and CRC officials met with the property owners that December at the transportation department’s headquarters in Raleigh.

The property owners again filed for a temporary restraining order on March 2 of this year after NCDOT started to work on utilities. The court issued the restraining order March 3.

The property owners are asking the Office of Administrative Hearings to overturn the CAMA major permit and remand the matter back to DEQ for “further appropriate and lawful permitting review.”

“We are not objecting to the replacement of this bridge,” Baldwin said. “We know it has to be done, but they have to be able to do it in a fair fashion and environmentally sensitive fashion.”

Reprinted from the Outer Banks Voice

A Camden County Superior Court judge has ruled that the Sea Breeze beach access in the Duck subdivision of Sand Dollar Shores is now within the town’s jurisdiction and belongs to the public.

The ruling marks a major win for Outer Banks business owner Bob Hovey and his wife Tanya, who filed a suit in August against the neighborhood’s homeowners’ association, arguing that the walkway was in the public trust.

Judge Lamott Wiggins on Feb. 14 granted the Hoveys a summary judgment without a trial. In his ruling, Wiggins stated, “It is declared that the “8’ pedestrian beach access easement … is an easement dedicated to the general public for the purpose of providing pedestrian access to the Atlantic Ocean beach held in the public trust by the State of North Carolina and is now in the jurisdiction of the Town of Duck.”

Hovey, who owns Duck Village Outfitters and has for years led a crusade for public beach access in the northern Outer Banks town, posted the news of the Feb. 14 ruling on his Facebook page on Feb. 29. “It’s been a long struggle, but the public can now enjoy the beach in Duck, N.C. on the Outer Banks,” Hovey wrote.

In an interview with the Voice, Hovey said that he hoped to work with the Town of Duck and the Sand Dollar Shores Homeowners’ Association (HOA) to continue to enhance beach access in the municipality. “Hopefully this will open the doors for some better opportunities for the public,” he said.

Hovey noted that he anticipated an appeal by the HOA, which would have to be filed within 30 days. Such an appeal process could take up to two years, but Hovey noted that “until the court says otherwise, it’s public at this point.”

Duck Town Manager Christopher Layton told the Voice that the town had signed a “consent order” with both parties saying that “we were going to abide by whatever the ruling is. This is an issue between two property owners.” According to Wiggins’ ruling, the town was a “nominal defendant” in the suit and did not participate in arguments, present evidence or materials.

Layton added that pending any appeal, the walkway is “a public access at this point,” noting that the ruling, while making the access public, does not obligate the town to do anything further at this point. The Voice was unable to reach Sand Dollar Shores Homeowners Association attorney Casey Varnell for comment.

The civil case was originally scheduled for Dare County Superior Court on Feb. 3, but it was continued to a later date in Camden County. The complaint argued that the Sand Dollar Shores Homeowners’ Association was “without authority to declare” the Sea Breeze beach access as common area for the exclusive use of its members and declared that the roads and easements in that neighborhood were dedicated to the public in 1981.

A staple in the Outer Banks surf community, Hovey filed the complaint in Dare County Superior Court several months after being arrested and charged with second-degree trespassing last May when attempting to use the access at the end of Sea Breeze Drive. But in light of the recent ruling, both Hovey and his attorney in that case, Angelea Norcross, said they were confident that charge would now be dropped.

“I feel confident they will make the right decision and dismiss the charge,” Norcross told the Voice. “(The walkway) was found to be public, there should be no doubt that he was not guilty of trespassing … Even if it is appealed, I still think there was reasonable doubt at the time Bob was arrested.”

A viral video of him being confronted by two angry homeowners at the time of the arrest helped to push the issue of public access in Duck onto the front burner. Soon after his arrest, Hovey launched a fundraising campaign that raised more than $13,000 toward legal efforts to secure public beach access in the municipality.

This story is provided courtesy of the Outer Banks Voice, a digital newspaper covering the Outer Banks. Coastal Review Online is partnering with the Voice to provide readers with more environmental and lifestyle stories of interest about our coast.

The Coastal Resources Commission has given Sunset Beach its approval to dredge about 18 acres, including south Jinks Creek, to a depth deeper than the connecting waters along its eastern border.

But the commission’s vote Wednesday during its meeting in Beaufort to approve the Brunswick County town’s variance request, which followed the October 2019 Division of Coastal Management approval of the permit with conditions, came despite some members’ objections.

Division staff agreed last week that the town met all the criteria for a variance, but a letter dated Jan. 30 from the Army Corps of Engineers seeking more information on the project, such as the proposed placement of the dredge spoils, spurred questions from some on the commission.

Commission member Robin Smith said that it appeared that the Corps’ letter raised issues beyond simply the spoils disposal issue. Some of the questions relate directly to the impacts of the dredging itself.

“So, given the fact that the Corps has raised some issues, and seems to be clearly saying that they have, so far, found the responses not to be adequate,” Smith said. “I would tend to think we would be better served to wait for the fuller responses to those questions, which I think partly will go, in the end, toward the issue of whether granting the variance would be consistent with the spirit, purpose and intent of the rules.”

Despite the CRC’s approval, the town will have to wait for the Corps’ authorization before beginning the project.

According to the draft biological assessment for the project, there has been significant shoaling in south Jinks Creek from tidal flows entering Tubbs Inlet, and bay area and feeder channel system developed for recreational boating access have been infilled from adjacent upland runoff and erosion, along with wind and wave action.

Initial approval conditioned

The town’s application initially included additional dredging in north Jinks Creek, but resource agencies expressed concerns about the effects in north Jinks Creek, which is a designated Primary Nursery Area with “significant shellfish resources.” Given the concerns and the commission’s rules restricting new dredging in PNAs, the proposed dredging of north Jinks Creek was removed from the application, according to the division.

The town also proposed dredging the four easternmost canals, called A, B, C and D, to 6 feet below mean low water and dredging the feeder channel, the bay area and south Jinks Creek to 5 feet below mean low water. The depth in north Jinks Creek between the feeder channel and the Intracoastal Waterway is about 2 feet below mean low water.

Tara MacPherson, a field representative with the division, recommended in June 2019 denying or conditioning the proposed dredging depths, which were inconsistent with a rule that prohibits any canal or boat basin from being excavated deeper than connecting waters, according to state records.

To comply with the rule, the division issued a CAMA major permit in October 2019 authorizing the project with the condition that the maximum dredging depth be 2 feet below mean low water. Town officials did not appeal the CAMA major permit but in December filed a request for the variance to the rule.

DEQ Assistant General Counsel Christine Goebel told the commission Wednesday that the town proposed in its variance request dredging about 10,650 feet of south Jinks Creek, the bay area and the feeder channel, to a maximum depth of 6 feet below mean low water. The finger canals would be dredged to 5 feet below mean low water. The town characterized its request as allowing an extra foot of allowance for each, Goebel explained.

“And so, in viewing this variance, it’s really just the difference between 2 feet and 6 feet, as far as dredge depths,” said Goebel.

The allowance was necessary, according to Robert Neal of Moffatt & Nichol Inc., the town’s consultant on the project, because an excavator is to perform the work from a barge in the waterway. If the contractor is restricted to dredge no more than 2 feet, there was no guarantee that at low tide the water would be navigable immediately after the project.

“We cannot guarantee below minus 1 mean low water, so at low tide you have 1 foot of depth,” he said. “Most outboard motors are going to drag at least 18 inches, our design vessel for this was 2 feet.”

Grady Richardson, Sunset Beach’s town attorney, told the commission that the requested depth would be consistent with areas of north Jinks Creek. He noted that the Division of Marine Fisheries had no issue with the proposed dredging depth, and it will not harm fisheries or habitat.

“We will also point out that the dredging we’re seeking is consistent with dredging depths throughout coastal North Carolina,” Richardson added. “And also, the frequency of the maintenance for dredging at minus 2 verses what we’re seeking will be less. We do agree with staff that will create less of an impact on the environment.”

Beach site not eroding

According to the division, the project is expected to yield about 40,500 cubic yards of beach-compatible sand from south Jinks Creek and 48,600 cubic yards of noncompatible material from the remaining areas. The compatible spoils will be placed on an 8.5-acre area of the oceanfront beach between Fifth and 12^th streets on Sunset Beach, and noncompatible material is to be placed in an upland landfill facility.

Although the town proposes to place the dredged material on 1,600 feet of oceanfront, the Corps noted that the placement site is not eroding or in need of additional sand.

Neal responded Wednesday during the meeting that the purpose of the beach fill is related to a state law that requires beach-compatible material to be placed on the downdraft beaches, which in this case would be Sunset Beach or Ocean Isle Beach.

“So we are required by rule to essentially keep that material in the system,” Neal said, adding that it’s standard process for dredge material to be placed along the beach. He said that the town approached Ocean Isle Beach, which has eroding shoreline, to place the material there but officials there said the benefit was not worth the cost.

Commission Chair Renee Cahoon noted that the Corps asked an “awful lot of questions” in its Jan. 30 letter, including about the environmental effects of the beach fill.

The Corps said in its letter to Sunset Beach than it had received input from the U.S. Fish and Wildlife Service, National Marine Fisheries Service, the Environmental Protection Agency, North Carolina Division of Coastal Management, North Carolina Wildlife Resource Commission, North Carolina State Historic Preservation Office and the North Carolina Coastal Federation, in addition to public comments, all of which were provided to Neal.

According to the Jan. 30 letter, Neal “provided a summary response document” on Dec. 16, 2019, that “attempted to address the over 200 comments received.”

The six-page letter from the Corps goes on to ask for more information and data on responses Neal provided.

“The need for placement of dredged material on the beach front has not been adequately demonstrated in your application, nor has it been satisfactorily described in the responses to comments,” according to the letter. “The avoidance and minimization descriptions provided in the application were insufficient for this office to determine that the proposed impacts from dredging and subsequent placement of the dredged material are unavoidable and have been minimized, or that compensatory mitigation would not be required at the proposed disposal area(s).”

The Corps also demanded more information on the purpose and need for the dredging depths, the proposed placement on the oceanfront and measures that would be taken to avoid environmental damage.

“I bring this to your attention to allow you the opportunity to modify your project plan to reflect an alternative that would have less impact on the aquatic resources documented at the site or to add to our record whatever additional information you feel is relevant to our review process,” Tyler Crumbley, the Corps’ Regulatory Division deputy chief, wrote in the letter. “Further evaluation of your application will be held in abeyance for 30 days pending receipt of your response. If no response is received within this time frame, we will close our record and a final decision will be made. You should be aware that based on the information we possess at this time it is unlikely a favorable decision would be made on your proposal.”

Cahoon proposed continuing the variance until the commission’s April meeting to give the town time to respond to the Corps’ demands, but Goebel responded that division staff were satisfied with the town’s compliance.

“In this case it’s the town’s place to respond to the Corps and not really DCM,” Goebel said, adding that the division staff was comfortable that it has also addressed and considered the issues.

Breaking down the vote

Although commissioners granted the variance request, the votes were not unanimous.

When voting on a variance, commissioners consider the following four criteria:

1. Will unnecessary hardships result from strict application of the rules, standards, or orders? If so, petitioner must identify the unnecessary hardships.
2. Do the hardships result from actions taken by the petitioner?
3. Do the hardships result from conditions that are peculiar to the property, such as the location, size, or topography of the property?
4. Is the requested variance consistent with the spirit, purpose and intent of the rules, standards or orders; will it secure public safety and welfare; and will it preserve substantial justice?

Commissioners Smith and Craig Bromby voted “no” on all four criteria. Cahoon voted “no” on criteria 2 and 4; Phil Norris voted “no” on criteria 2; and Lauren Salter voted “no” on criteria 4. Commissioners voting in favor of all four included Trace Cooper, Bob Emory, Doug Medlin, Neal Andrew, Larry Baldwin and Robert High. Commissioners Alexander Tunnell and Angie Wills were absent.

Opponents of the project questioned the commission’s decision.

“I thought it was interesting that one commissioner wanted to know why the town proceeded with the variance before the (Corps) made their decision. This is a question I asked the Council last week but got no response,” Richard Hilderman, a Sunset Beach property owner, founding member of the Brunswick Environmental Action Team, or BEAT, and retired biochemist, wrote in an email.

This story has been updated to correct the proposed setback determinations within inlet hazard areas.

BEAUFORT – The state Division of Coastal Management has extended the public comment deadline on proposed redrawn inlet hazard area boundaries and building rules within them.

Public comments may be submitted through March 2, an additional month past the original Jan. 31 deadline.

Ken Richardson, a shoreline management specialist with the division, told members of the North Carolina Coastal Resources Advisory Council, or CRAC, on Wednesday that the division had received a hefty amount of comments about the proposed boundaries and rules.

Given the volume of comments the state had already received, Richardson said a staff summary of that public feedback would be presented to the Coastal Resources Commission, or CRC, which will likely discuss the proposed changes during its April meeting in Manteo.

“This is just kind of the start,” he said.

The CRC may discuss in April issues raised by the public, including proposed grandfathering dates related to rebuilding after storms, proposed limits on the size of structures built within the boundaries and whether the method established to draw the new boundaries accurately predicts erosion rates at the state’s developed inlets.

Spencer Rogers, a member of the Science Panel and CRAC, told fellow council members Wednesday that there are problems with some of the proposed changes.

The most serious, he said, is that erosion rates are severely underestimated at some of the inlets under the proposed rules.

Current Inlet Hazard Areas, or IHAs, were drawn based on the historic migration of the inlet shoreline.

Under the proposed changes, the vegetation line or static vegetation line, whichever is applicable, is used to establish setbacks within inlet hazard boundaries.

Inlet hazard areas are defined as shorelines especially vulnerable to erosion and flooding where inlets can shift suddenly and dramatically.

Erosion rates are more similar and evenly parallel along a straight shoreline. That’s not the case at inlet shores, which curve around.

Including the average oceanfront erosion shoreline rates with part or all of an inlet shoreline can distort the historical rate of change to an inlet’s shore, Rogers explained.

In a memo to the CRAC, Rogers points to Tubbs Inlet as an example of the disparity.

The Sunset Beach shoreline at Tubbs Inlet was “blocked” to have an erosion rate of 2 feet per year. That shoreline eroded about 1,000 feet between 2009 and 2014, a rate of about 200 feet a year, Rogers said.

Tubbs Inlet is one of 19 active inlets in the state. A little more than 2,900 acres at the state’s 10 developed inlets are designated as IHAs.

Those inlets include Tubbs, Shallotte and Lockwood Folly in Brunswick County; Carolina Beach, Masonboro, Mason and Rich in New Hanover County; New Topsail and New River in Pender County; and Bogue Inlet in Carteret County.

The proposed maps expand current IHAs collectively by a little more than 1,359 acres while removing about 470 acres from existing boundaries at the 10 developed inlets.

The greatest pushback on the proposed boundaries comes from Holden Beach in Brunswick County and North Topsail Beach in Onslow County.

During a series of public meetings DCM hosted late last year and into this year, beach property owners and town officials from Holden Beach expressed their concerns about the proposed expansion of the IHA at Shallotte Inlet eastward for about 2 miles from the end of the island, which is accreting.

The preliminary boundary encompasses a little more than 200 structures, nearly four times the 51 structures in the current IHA.

People have also criticized the proposed structure size limit within IHAs. New construction is limited to structures no larger than 5,000 square feet.

Rogers said the CRC needs to clarify whether that limit is strictly meant for buildings or all structures, including parking lots, roads and bridges.

He also suggested that the CRC consider changing the proposed grandfathering date of August 2009 to the date the new rules are adopted.

Currently, buildings in IHAs that are larger than 5,000 square feet and built before Aug. 11, 2009, may be rebuilt after a storm. Those buildings could not be rebuilt under the proposed rules.

Other changes to existing rules, including overturning the prohibition of dune construction near inlets, and changing the general permitting rule to allow bulldozing in IHAs may also be considered.

The Science Panel recommends that the IHA boundaries be updated every five years.

Submit comments

• Written comments may be sent to Braxton Davis at braxton.davis@ncdenr.gov or Ken Richardson at ken.richardson@ncdenr.gov.

DARE COUNTY — The disconnect between current flooding reality and the newly released floodplain maps in Dare County, which decrease flood zones by 41%, may be starker than most coastal areas in North Carolina because of the barrier islands’ geology.

But much of the disparity between actual vulnerability and the flood risk reflected in Dare’s pending flood maps relates the timing of data collection and a different interpretation of oceanfront storm surge.

Whatever the reason, the dramatic changes in the updated maps misrepresent the flood risk for property owners in unincorporated Dare County and its six towns, said Dare County Planning Director Donna Creef.

Of the county’s 12,875 properties, the VE, or high-velocity areas such as the oceanfront, will soon number 124 properties, compared with the 1,828 currently, according to a presentation Creef gave to the Dare County Board of Commissioners during its Jan. 6 meeting. Many VE properties will be moved to AE flood zones, which are classified at 4 feet or 8 feet of base flood elevation. In addition, she said, the revised maps decrease current AE zone properties from 12,875 to 8,493. Also, 2,890 properties have been reclassified as shaded X and X zones that do not require federal flood insurance.

“Our concerns are legitimate concerns.”

Donna Creef, Dare County Planning Director

Creef said that when the maps are effective June 19, flood insurance rates will be based on the new maps. That could be a problem if people drop policies, even though their property is still subject to the same risk of flooding.

“Our concerns are legitimate concerns,” Creef said.

The county plans to put a local ordinance in place with appropriate elevation standards for properties in flood areas.

“Houses that have built since 2006 are elevated to levels that did not flood in Hurricane Irene,” she said. “That’s a good benchmark for us.”

But at this point, since the maps are not going to change, and their implementation is certain, the county has stepped up its outreach to citizens with its “Low Risk” is not “No Risk” initiative, including on its website. It is also working with local real estate companies and other community groups to get the word out.

“We’re committed to this,” she said.

Currituck County also had a lot of its properties that were formerly in flood zones moved out of flood zones, said Jason Litteral, the county’s floodplain manager.

“It’s a little odd, obviously, in the climate we are in right now, to reduce the flood zone requirements. It’s kind of counterintuitive.”

Jason Litteral, Currituck County Floodplain Manager

A number of oceanfront properties in Corolla and Carova are no longer in flood risk areas, he said, and there wasn’t any transition in the way they were reclassified.

“It just went straight from the worst flood zone to the best one,” he said. “It’s a little odd, obviously, in the climate we are in right now, to reduce the flood zone requirements. It’s kind of counterintuitive.”

The floodplain program covers the county’s 29-mile ocean coastline and 93.5 miles of riverine shoreline. The new maps, which were finalized in December 2018, had a 89.5% decrease in V zone and a 24.75% increase in A zone properties.

Another impact of the map changes is that much of the property in Carova that is in special Coastal Barrier Resource Act, or CBRA, zones, where federal flood insurance is not available to property owners, will no longer have to carry flood insurance. Despite some concern that it would result in a building boom in flood zones, Litteral said that had not happened. Nor had people in other former flood zones given up their policies en masse.

“We feared that everyone was going to drop their insurance immediately,” he said. “But it’s been nowhere what we anticipated.”

The state was required to use the approved Federal Emergency Management Agency standards and guidelines in creating the updated maps, said Randy Mundt, outreach coordinator with the North Carolina Emergency Management flood mapping section. And the new maps are accurate in that context, he added.

“The coastal flooding processes for FEMA’s models that are required to be used do not factor in rainfall,” Mundt explained. “They only factor storm surge and wave action associated with coastal storm events.”

But the maps, which are updated every 10 years or so, have different levels of accuracy in different parts of the state. And Dare County has a dynamic coastline that is more vulnerable to the effects of changing sea levels than the rest of the state.

“All modeling has to be based on existing data when we initiate the study,” Tom Langan, Engineering Supervisor North Carolina Emergency Management flood mapping section, explained in a recent telephone interview.

Since the storm surge modeling started around 2010, data from hurricanes Irene in August 2011, Matthew in September 2016, or Florence in September 2018, were not included. But those storms created significant flooding and/or storm surge on the Outer Banks.

Prior to the new maps, Dare’s flood maps had used a 1981 surge study as the base for its updated wave modeling. In the old model, surge primarily looked at wave action, while the new maps look at the influence of the primary frontal dune on the wave action. Rather than the paper topographical maps, the new coastal study used digital LIDAR, or light detection and ranging, which provides more accurate ground elevations.

The state is encouraging communities to use their own experience and expertise to set appropriate flood zone standards.

“Flood risk is not uniform across the United States, nor in North Carolina,” Mundt said. “If you think you’re in an area that is flood prone, you should maintain or purchase flood insurance.”

Learn more

• Coastal Flood Hazard Analysis
• Primary Frontal Dunes Fact Sheet
• Storm Surge Study Methodology
•  FEMA Coastal Risk Analysis and Mapping Fact Sheet

The U.S. Department of Interior Secretary’s reversal of a rule that limited where sand within federally restricted coastal zones may be placed is a change that makes good economic sense, proponents say, but one that environmentalists say is a step backward in protecting sensitive coastal resources.

Interior Secretary David Bernhardt announced late last year that federal funds can be used to pay for dredging sand within Coastal Barrier Resources Act units and then placing that sand on beaches outside of CBRA zones for shoreline stabilization projects.

Bernhardt’s decision overturns a 1994 Interior Department solicitor’s opinion, which concluded that in order to qualify for federal funds, sand in a CBRA zone had to stay within that CBRA zone.

His decision also overrides a 2016 interpretation by the U.S. Fish and Wildlife Service, which “stalled” and “ballooned” the costs of coastal storm damage reduction projects, “despite the Service in 1996 having previously allowed sand recycling” from certain CBRA units, according to a letter signed by three congressmen, including U.S. Rep. David Rouzer, a Republican from North Carolina’s 7^th District.

U.S. Fish and Wildlife Service Director Aurelia Skipwith said in a telephone interview last week that the department decided to reassess the interpretation of the act after receiving comments from those on Capitol Hill speaking on behalf of their constituents.

“And that fits along with what this administration, the Trump administration, is doing and what (Bernhardt) is focused on, which is using strong science looking at the rule of law to make sure that we’re looking at the policies that are impacting the communities that we’re working in,” she said. “As long as we’re following the law and the exemptions that are there, the sand that is within the system can be used for certain nonstructural projects outside of the system.”

Skipwith said each project will be analyzed on a case-by-case basis, “so long as the project furthers the purpose of the act and meets the act’s criteria, which are: One, it must be something that’s nonstructural; two, be for the purpose of shoreline stabilization; and three, it must mimic, enhance or restore natural stabilization. Then, those projects can be considered.”

Congress passed CBRA, which is pronounced “cobra,” in 1982 to discourage building on relatively undeveloped, storm-prone barrier islands by cutting off federal funding and financial assistance, including federal flood insurance.

CBRA was also established to minimize the loss of human life, wasteful spending of federal funding, and damage to fish, wildlife and other natural resources associated with coastal barriers.

In 1996, Fish and Wildlife granted exemptions allowing the Army Corps of Engineers to take sand from CBRA units in New Jersey and use that sand to renourish that state’s beaches outside of those units.

Similar exemptions have been made in North Carolina.

The Corps dredges Masonboro and Carolina Beach inlets to maintain their respective navigation channels. A portion of Masonboro Inlet and all of Carolina Beach Inlet are in Coastal Barrier Resources System Unit L09.

Sand within that unit has over the years been placed on both Wrightsville Beach’s and Carolina Beach’s ocean shorelines, projects paid for with local, state and federal money.

Dave Connolly, public affairs chief of the Corps’ Wilmington District, explained in an email responding to questions that Corps and Fish and Wildlife officials established an agreement that allowed the Corps to dredge and move sand outside of the CBRA unit.

“When the cost sharing agreements were originally entered into with the local sponsors of the Carolina Beach and Wrightsville Beach [coastal storm damage reduction] projects, it was generally understood in and agreed that the periodic maintenance of the projects was consistent with the relevant CBRA exceptions,” he said.

Then, Fish and Wildlife released its 2016 interpretation.

“Although the agencies never successfully resolved their disagreement, the Corps continued to maintain the projects in accordance with prior authorizations,” Connolly said. “When the respective projects required additional authorization in order to continue, the Corps agreed to pursue the investigation of alternative offshore borrow sources. [Department of Interior’s] reversal of their prior interpretation allowed the Corps to consider the inlet as a borrow source as well.”

Bernhardt’s reversal now opens the possibility for Topsail Beach, the southernmost town on Topsail Island, to get permission to tap a sand source within a CBRA unit rather than an offshore borrow source, something the town has been asking for the past decade, said Chris Gibson, the coastal engineer hired by the town to oversee its dredging and renourishment projects.

“At this point, I don’t know whether or not the town will push that simply because it’s so many years of study,” said Gibson, president of TI Coastal.

The town in 2010 initiated a project aligning dredging New Topsail Inlet with beach renourishment to cut costs.

Banks Channel, a navigable connector to Topsail Inlet and part of which is in a CBRA unit, has been the go-to sand source for beach renourishment projects in Topsail Beach, where the beachfront has been injected with more than 2 million cubic yards of sand within the past several years. More than half of that sand has come from the CBRA zone.

“This program is working in ways that other programs aren’t working,” Gibson said. “Why wouldn’t we do this?”

He said the timing of the Bernhardt’s decision bodes particularly well for the town because it continues to gain ground as the inlet steadily migrates south and farther into the CBRA zone.

Opponents of the reversal say the new interpretation may harm these ecologically sensitive areas, promote development in storm-prone coastal areas and reroute federal funding.

Karen Hyun, National Audubon Society’s vice president for coastal conservation, said that Audubon is not against beach renourishment projects, but sees protecting CBRA units as important to the integrity of those areas.

“I don’t know how many communities out there would like to use that sand,” she said. “CBRA expands the country’s 3½ million acres (in the John H. Chafee Coastal Barrier Resources System). I don’t think we understand the breadth of those impacts to all of those places. I think we have a lot of questions on how it will be implemented that meet the purposes of the act.”

Jim Herstine, professor emeritus at the University of North Carolina Wilmington and whose research includes coastal access issues, said removing sand from CBRA units will have damaging environmental impacts.

“When you give people an open chance to dip into sand any place where you can find it you’ve got to be hurting the areas where they’re coming from,” he said. “The sand has stayed within those systems. I think the issue of the fact is there’s such a finite supply of sand available to us now.”

BOLIVIA – Holden Beach is taking the state Division of Coastal Management to task for its proposal to expand the western end of the island’s inlet hazard area.

During the first in a series of public meetings the division is hosting through January, a small group of Holden Beach residents and the town’s planning director on Tuesday morning questioned a state official as to why the preliminary boundary at Shallotte Inlet stretches eastward for about 2 miles from the end of the island that is accreting.

“I really have concerns just about how you came up with these boundaries,” said Vicki Myers, resident and chair of the town’s Inlet and Beach Protection Board. “I think your math is wrong.”

The preliminary boundary encompasses a little more than 200 structures, nearly four times the 51 structures in the current inlet hazard area.

“This is a huge issue,” said Holden Beach Property Owners Association President Tom Myers. “To look at these numbers it makes it look like it’s the most dangerous place in the state. Just looking at it makes no sense that our west end of the island has the most houses in an inlet hazard area in the state.”

The Myerses, who are married, do not live in the current or proposed inlet hazard area, or IHA, but said expanding the area at the western end, which has been accreting since the 1970s, does not make sense.

Developed inlets

IHAs are defined as shorelines especially vulnerable to erosion and flooding where inlets can shift suddenly and dramatically.

Shallotte Inlet is one of 19 active inlets in the state. Ten of those are called developed inlets. A little more than 2,900 acres at the 10 developed inlets are designated as IHAs.

Those inlets include Tubbs, Shallotte and Lockwood Folly in Brunswick County; Carolina Beach, Masonboro, Mason and Rich in New Hanover County; New Topsail and New River in Pender County; and Bogue Inlet in Carteret County.

Discussions and attempts to update IHA boundaries, which were first drawn in the late 1970s, go to back to 1998-99, when members of the first-appointed science panel suggested to the commission that the boundaries were outdated.

Current IHAs were drawn based on the historic migration of the inlet shoreline.

To establish the proposed updated IHAs, the science panel is using the hybrid vegetation line, or landwardmost position of the historic vegetation line, to determine boundaries.

The proposed maps expand current IHAs collectively by a little more than 1,359 acres while removing about 470 acres from existing boundaries at the 10 developed inlets.

Inlets typically move over time in one of two ways: An inlet migrates, meaning it moves in one general direction, or it oscillates, wagging back and forth. A majority of the state’s inlets, including Shallotte Inlet, oscillate.

In its recommendations released to the Coastal Resources Commission earlier this year, the commission’s science panel explained that the historic repositioning of the outer bar channel from the southwest to the southeast reshaped the ebb-tide delta and its effect on the adjacent oceanfront shorelines on Holden and Ocean Isle beaches.

The ebb channel has generally aligned in a southeast/east-southeast direction since the late 1960s, which has allowed sand to accrete at the western end of Holden Beach. During this same time, Ocean Isle’s oceanfront shoreline at the inlet has experienced chronic, long-term erosion.

If the ebb channel were to re-orient itself again toward Ocean Isle, then Holden Beach would erode, according to the science panel.

“I just don’t see how we can believe in the science.”

Tim Evans, Director, Holden Beach Planning and Inspections

Holden Beach Planning and Inspections Director Tim Evans said the data indicate the inlet essentially stabilized in the 1970s.

“Our vegetation line is constantly growing,” he said. “I think that Holden Beach really needs to be looked at again, especially where the original inlet hazard area was. I just don’t see how we can believe in the science.”

The new proposed boundaries come with updated rules, which include the current limit that structures within an IHA can be built no larger than 5,000 square feet of heated space and no more than one unit per 15,000 square feet of land area.

Homes and businesses that exceed the size limit within the new boundaries would be grandfathered under the new rules.

Existing structures destroyed or damaged, requiring more than 50% repair, can be rebuilt regardless of size or density as long as the structure meets the setback requirements within the IHA. Setbacks vary in each area.

If a structure does not meet the setback requirements, a structure that meets current grandfathering rules may apply. Those rules include being built before Aug. 11, 2009, meeting minimum setbacks, staying within the original footprint and rebuilt as far landward on a lot as possible.

The current preliminary boundary at the west end of Holden Beach stretches about 2 miles, Evans said.

He argued that a major storm, not inlet erosion, could damage and destroy the more than 200 homes within the proposed IHA. If those homes cannot be rebuilt because they do not meet setback conditions, that would have a significant economic impact to the town, Evans said.

More hearings scheduled

Public hearings are being hosted in counties where there are developed IHAs.

Hearings were held in New Hanover, Pender and Onslow counties Tuesday and Wednesday.

The remaining hearings are as follows:

• Jan. 7 – N.C. Division of Coastal Management office, 400 Commerce Ave., Morehead City.
• Jan. 8 – Community Center, Multipurpose Room, 30 Oyster Creek Road, Swan Quarter, and broadcast simultaneously to Ocracoke Island at the Ocracoke Community Center, 999 Irvin Garrish Highway.
• Jan. 14 –Nags Head Board of Commissioners room, 5401 S. Croatan Highway, Nags Head.

Public comments may be submitted to the Division of Coastal Management through Jan. 31, 2020.

Public comments will likely be presented to the Coastal Resources Commission at its February meeting next year. If the commission adopts the new boundaries, those may go into effect between April and May.

Written comments may be sent to Braxton Davis at braxton.davis@ncdenr.gov or Ken Richardson at ken.richardson@ncdenr.gov

SUNSET BEACH – The town has received a state permit to dredge south Jinks Creek to less than half of the depth the town requested in its permit application.

The North Carolina Division of Coastal Management earlier this week issued a conditioned Coastal Area Management Act, or CAMA, major permit that limits the dredging depth in the southern portion of the creek, feeder channel, finger canals and bay area of the island to no more than 2 feet below mean low water.

Sunset Beach’s dredging plan proposes to excavate those waterways, with the exception of the finger canals, to 6 feet below mean low water. The finger canals would be dredged to a depth of 5 feet.

Town Administrator Hiram Marziano II said the town will ask the Coastal Resources Commission, or CRC, for a permit variance.

“The CRC may issue a variance and amend the conditions of our permit to allow us to dredge deeper without disturbing adjoining areas,” Marziano wrote in an email distributed to property owners on Tuesday. “This process will take several months leading into early 2020 to Spring 2020 before we have a final decision from the CRC.”

Meanwhile, the town awaits word from the Army Corps of Engineers, which determined the town would have to apply for an individual federal permit rather than a general permit to dredge.

The Corps accepted public comments on the proposed project through Oct. 24.

Corps officials will evaluate those comments and allow Moffatt and Nichol, the engineering firm hired by the town to oversee the project, to respond, according to Tyler Crumbley, deputy chief of the Wilmington district’s regulatory division.

Corps and U.S. Fish and Wildlife Service officials are discussing whether threatened and endangered species may be affected by the proposed project and identifying those species that could be affected.

The project calls for placing dredged sand onto 1,600 feet of the island’s ocean shoreline.

In July, the fish and wildlife service informed the Corps that the proposed sand placement “may affect, and is likely to adversely affect” five species of sea turtles, red knot, piping plover and seabeach amaranth.

If the Corps determines the project may likely adversely affect a listed species, the agency will ask for formal consultation with fish and wildlife service, a process that could further push back a permit decision.

Town officials had hoped to begin the project, which includes roughly 3 miles of waterway, this fall, to unclog channels that give boaters access to the Atlantic Ocean.

In his email to property owners, Marziano addresses a series of questions about the conditioned CAMA major permit.

He said that dredging to a depth of 2 feet will would decrease the longevity and effectiveness of the town’s project.

“The initial construction cost would also decrease, but the Town could expect to be dredging a lot more frequently to maintain navigation,” he wrote. “So over time the project costs may increase due to repetitive mobilizations.”

He said he does not know how often town would need to do maintenance dredging.

“This is unknown and will depend on how quickly this fills in and how much money is generated from the as yet implemented tax district for the affected areas the Town has been authorized to establish once dredging has occurred,” Marziano said.

The Division of Coastal Management, or DCM, early this year approved a CAMA major permit for the town to dredge Mary’s Creek and Turtle Creek.

But the division said Moffatt & Nichol would have to resubmit the application to dredge south Jinks Creek, the finger canals, feeder channel and bay area because it missed several pieces of information.

Last year, town officials opted not to dredge the northern portion of Jinks Creek, which has never been dredged.

Jinks Creek is roughly a mile long and connects Tubbs Inlet with the Atlantic Intracoastal Waterway, providing ocean access to property owners who live on the eastern end of the Brunswick County island.

The creek supports nearly 1,200 oyster species per acre, or a little more than 50,300 in total, between the Intracoastal Waterway confluence and the entrance to the feeder canal, according to a February 2018 survey conducted by Moffatt & Nichol.

That survey concludes that proposed dredging “may create impacts” to more than 12,000 oysters and disturb an estimated 10.72 acres within the creek between the ICW confluence and feeder canal.

The CAMA major permit issued Oct. 28 for that portion of the project specifies several conditions, including developing and implementing an oyster relocation plan.

That plan is required only for the authorized dredged footprint, said Patricia Smith, DCM and Division of Marine Fisheries communications director.

Specifics of the method in which the relocation will occur were not available at press time.

Dredging may not occur within 10 feet of coastal wetlands, between April 1 and Sept. 30, and sand may not be placed on the beach between April 1 and Nov. 15.

The permit expires Dec. 31, 2022.

NEW BERN – The next five-year update to the state’s 2010 sea level rise assessment report will look all the way out to 2100, the science advisory panel to the state Coastal Resources Commission decided during its Oct. 18 meeting.

The CRC Science Panel’s  2010 North Carolina Sea Level Rise Assessment Report, which included sea level rise projections to 2100, was updated in 2015 but commission members in place at the time limited the panel’s scope to a 30-year rolling time table.

The 2010 report was a synthesis of then available data on sea level rise on the state’s coast. It also provided recommendations, at the request of the CRC, regarding how much sea level rise to plan for by 2100. The conclusion for that report was “that a rise of 1 meter (39 inches) be adopted as the amount of anticipated rise by 2100, for policy development and planning purposes.” The panel also recommended that the report be updated every five years to stay current with the latest science.

The report was met with scorn by a North Carolina economic group, ultimately leading to Session Law 2012-202, House Bill 819, which gave guidelines to the sea level rise report’s 2015 update and also included that the CRC and DCM “shall not define rates of sea-level change for regulatory purposes prior to July 1, 2016.” North Carolina faced national criticism as a result, with many news sources saying that the state had outlawed science.

The current CRC members for the 2020 update directed the science panel during its September meeting to “conduct a comprehensive review of scientific literature and available North Carolina data that addresses the full range of North Carolina-specific sea level change and to look ahead “a minimum of 30 years.”

Tancred Miller, coastal and ocean policy manager with the Department of Environmental Quality’s Division of Coastal Management, told Coastal Review Online that having the report extend to 2100 is to help inform decision making on longer-term investments. Also, 2100 is a benchmark date that is used in a lot of the published literature.

Miller said the commission members at the time went with the 30-year timeframe for the 2015 report because they thought it would be more relatable.

“Thirty is a common number in our rules and people are comfortable with it. Oceanfront setbacks are 30 times the annual erosion rate, the estuarine buffer is 30 feet and it ties in neatly to a 30-year mortgage,” he said. Additionally, the range of uncertainty in the projections is much lower at 30 years than at 85 years. “For these reasons they thought a single time step to 2100 wasn’t as useful for planning as a 30-year projection. That’s also why the commission asked for 30 years plus whatever else the panel wants to add beyond that, for the 2020 report.”

Bill Birkemeier, chairman of the 10-member CRC Science Panel, in a follow-up interview said that the meeting Oct. 18 in New Bern was the first with the newly appointed panel members and the first meeting to begin thinking about the sea level rise report update.

“Although there are many sources of sea level information, it was clear that one focusing on North Carolina was still needed. We will be busy,” he added.

Miller explained that the panel is aiming to prepare the draft within the next six months. From there it will proceed to technical peer review and revision, then to public review. The final report should be complete by late summer 2020.

The 13-member CRC was created when the General Assembly adopted the Coastal Area Management Act, or CAMA, in 1974. The Division of Coastal Management uses the rules and policies established by the CRC to carry out CAMA, the Dredge and Fill Law and the federal Coastal Zone Management Act of 1972 in the 20 coastal counties.

During the meeting, Miller told the science panel that a presentation in the early 2000s by coastal and marine geologist Stan Riggs, a professor at East Carolina University, got him thinking about sea level rise and the implications for North Carolina.

DCM then began developing a strategy, which led to a broad scoping study in 2010. Most survey responses pointed to the public wanting a state-level response and DCM began by asking, “what is the science telling us?”

When DCM first discussed sea level rise with the science panel, the members responded by offering to assemble the report, which was released in March 2010, based on available published literature about sea level rise in the state.

For the 2010 report, the CRC and DCM asked for an explanation of how sea level rise is measured globally, on the state level and regionally; relative sea level rise ranges for different sections of the coast and in time slices for 2025, 2050, 2075 and 2100; and relative sea level rise rate curves for North Carolina through 2100. The science panel was also to provide recommendations to improve sea level rise monitoring and how often the state should update its projected sea level rise ranges and rates.

In addition to the science panel determining that 1 meter of rise should be used for planning benchmark, the panel recommended five-year updates, more coverage, especially of the estuarine waters, and additional monitoring. Miller said funding was secured this year to upgrade five or six existing gauges to National Oceanic and Atmospheric Administration standards.

Once the 2010 report was finalized and issued, the CRC asked the panel to clarify some points in the report. The panel asked why the report only used data from one tide gauge for the entire coast, why sea level rise acceleration was expected when past data showed none and how the Intergovernmental Panel on Climate Change, or IPCC, projections were used. The CRC’s questions were answered in a 2012 addendum.

Miller said they began formulating a multi-part strategy that was cut short.

“On the basis of the 2010 study, we drafted a sea level rise policy — this was a planning-type document, it was not meant to be regulatory — but we did include in that draft policy that on the basis of the panel’s recommendation, that the state should start thinking about 1 meter of rise by the end of the century,” Miller said. And when planning, “keep that in your mind that there’s the possibility of up to a meter of sea level rise. Adapt accordingly.”

When they presented the information to many different local governments and asked for input, there was a range of reactions, from “deer in headlights,” to they didn’t know it was a problem, to this is a great emergency, to this is a Chinese hoax, Miller said. “We got the full spectrum of responses. Probably the strongest reaction we got was from NC 20, who organized themselves very quickly.”

The coastal economic group, NC 20 saw that this was the first step toward regulation that would hurt industry, particularly coastal real estate and development, and lobbied for legislative action, leading to House Bill 819, which was sponsored by Rep. Pat McElraft, R-Carteret and Sen. Bill Cook, R-Beaufort, and approved in July 2012.

For HB 819, “there continues to be a lot of misunderstandings and misconceptions about what that legislation did and didn’t do,” he said.

After hearing public input following the first draft, HB 819 “kind of put a moratorium on using any official numbers, rates of sea level rise for state-level planning or state-level regulation,” he said, until the new 2016 report.

For the new report required to be drafted for 2015, which was already planned, the bill asked for the report to be geographically segmented, to look at all scenarios of sea level rise or change and to evaluate different models.

The bill also said the only state agency that could adopt rates of sea level rise for planning and regulation was the CRC, DCM and science panel, and that remains true today, Miller said. The moratorium on planning regulations ended in 2016.

Another misconception of the legislation is that session law did not limit the timeline for the 2015 report. That was a request from the CRC members at the time to the panel and the panel agreed. Legislation did not set any limit.

As part of the process for the 2010 report, the science panel created a peer review process, which Miller said they will try to replicate for the 2020 update.

WILMINGTON – Commercial fishing crews earlier this year collected more than 200 tons of marine debris – the weight of about 80 midsized cars — from along 42 miles of central and southeastern North Carolina coastline as part of a Hurricane Florence marine debris recovery project.

The North Carolina Coastal Federation recently presented an update to the Coastal Resources Commission on the large-scale, February-August cleanup that the federation coordinated with funding from the North Carolina General Assembly.

The federation worked in partnership on the effort with the state Division of Marine Fisheries, which was appropriated the $400,000 by the General Assembly as part of its post-Florence disaster bill. The contracted crews that collected the debris were made up of state standard commercial fishing license resident shellfish license holders.

“The marine debris that we pulled out of the marsh area included household trash, plastic, bottles, cans, foam pieces, fishing gear, tires, building supplies, pressure treated wood that came from docks, decking, boards and pilings. These were all very large pieces of wood that had been floated up into the marsh area,” Sarah Bodin, coastal restoration specialist with the federation and one of the project managers, told the CRC members during its meeting Sept. 18-19 at the New Hanover County Government Center.

The project was separated into phases, she explained. Phase 1 focused on light consumer debris that could be placed in trash bags, while Phase 2 focused on heavy wood debris, like pilings and decks, that had to be removed with heavy equipment.

Phase 1 included the southeast region, or Lower New River to Surf City, and the central region, or the Swansboro area. The 11-person crews collected 87.6 tons of debris, or about 175,200 pounds, over the course of 117 days.

During Phase 2 in the Swansboro area, 112.7 tons were collected over 45 days by a four- to nine-person crew using a barge, excavator and other heavy equipment.

Collection totals for the southeast region were 75 tons and in the central region, 125.3 tons for a total of 200.3 tons.

“We tried to hire local fishermen and women who knew the surrounding waters and had a commercial fishing license. The contractor we selected for the heavy wooden debris is a local contractor who had the required equipment needed for the job,” Bodin said following the presentation.

Ted Wilgis, biologist and coastal education coordinator for the federation’s southeast office, coordinated the cleanup in the southeast region.

“Right after the storm, we started to get a lot of reports of a lot of debris in the water,” he said during the meeting.

Wilgis said coastal residents didn’t know what to do with the marine debris because there hadn’t been as much of a focus as on land-based cleanups. Some began burning the treated lumber, “which is a pretty awful source of potential pollution,” he said.

National Oceanic and Atmospheric Administration aerial imagery of the coast from Brunswick County to Harkers Island provided a view of the damage along the coast right after the storm.

“What we saw were very large percentages of docks that were damaged or destroyed, based on that imagery,” Wilgis said. That meant that all that lumber and material was in the estuary and needed to be found and removed. A survey was also performed to help determine the amount of debris.

“Based on all this, we realized that we needed a large-scale effort to get this debris out of the water and into dumpsters and landfills,” Wilgis said.

He also explained that the most difficult work was done by the field crews. “This is very hard work,” Wilgis said, describing how the crews often went deep into the marsh to remove debris by hand.

In the field

Joe Huie, born and raised in Sneads Ferry and a commercial fisherman like his father, served as crew leader in the New River to Surf City area, or the southeast region. Around 15 years ago, Huie said he built docks and seawalls up and down the New River area.

“I’ve always seen debris accumulate after storms – anybody can see that – but early on in this project, I realized I had no clue,” he told the CRC, adding most of the debris collected couldn’t be seen from a vessel.

Everyone on his crew either lives or works in Sneads Ferry and all were shocked by the amount debris out there, he added.

In the Surf City area, the crew found a lot of abandoned crab pots and related gear.

Huie kept daily notes of the debris they collected. He said that on a normal day, if less than 10 crab pots were recovered, he didn’t put it in the notes for that day. “In the notes alone, we got nearly 500 disposed of crab pots. We had as high as 40 crab pots in one day,” he said.

In the more densely populated areas, the crews came across “cutoffs,” or what Huie said they call the trimmings from the construction of pilings, docks, seawalls and decking boards, which appeared to have been pushed into the water rather disposed of properly.

He said crews found many cutoffs at the high-tide line. At one point, they used trash cans they found in the marsh to collect “these little triangles, 90-degree cutoffs of new construction. We would fill up trash cans every day with these little pieces of wood debris,” he said. And while that debris isn’t necessarily from the storm, it was definitely a problem that could be prevented if builders took care to properly dispose of the pieces.

During collection they also came across four dominant types of Styrofoam or Styrofoam composites: consumer debris like cups and plates; disintegrated chunks of floating docks made of Styrofoam; yards of strewn Styrofoam pieces, similar to packing peanuts, that broke out of its casing around drain pipes; and the fourth type of foam, which Huie said caught him off guard, was the Styrofoam composite material put under the siding.

“From the first day to the last, we collected that every single day. An average 32-gallon trash bag a day at least,” he said. “Once it is under the sun … it disintegrates and is impossible to pick up. I couldn’t imagine the real amount out there in the environment.”

Huie said his crew was proud to be part of the project, which he said was needed.

Wilgis told Coastal Review Online after the meeting that the debris is a persistent problem.

He said there are things that can be done through regulations under the CRC’s purview to try to minimize debris, including better pier and dock building code recommendations and requirements for more durable structures as well as for floating docks.

There is also opportunity for outreach to homeowners and contractors on how to prepare for storms, such as removing dock planks to relieve surge pressure and securing all building and construction supplies, Wilgis said.

Derelict and abandoned vessels

The CRC also heard from Paula Gillikin, who manages Rachel Carson Reserve in Beaufort and Permuda Island in Onslow County, about the agency’s work to remove derelict and abandoned vessels after Hurricane Florence. The reserves are part of a program of the Department of Environmental Quality’s Division of Coastal Management.

Gillikin explained that one of the primary, year-round management challenges for the reserve sites is consumer debris and dock sections that wash up.

“We deal with acute debris situations especially after storms, particularly after Hurricane Florence,” she said. With the Rachel Carson Reserve located across Taylor’s Creek from downtown Beaufort, there was a lot of coastal infrastructure damage that that made its way to the reserve.

After Hurricane Florence, DCM coordinated with the Coast Guard using Federal Emergency Management Agency relief money, the Wildlife Resources Commission and the Environmental Protection Agency to address environmental hazards related to derelict and abandoned vessels.

Gillikin explained that 362 vessels were displaced during Hurricane Florence. Around 40 vessels were still in sensitive habitats and about 50 additional vessels were on less sensitive private property and other locations.

The Rachel Carson Reserve saw 11 vessels washed up after the Florence. Eight of the owners contracted with salvers to remove the vessels.

Shortly after Hurricane Florence, Beaufort commissioners passed an ordinance that addresses abandoned and derelict vessels.

“When these vessels become trash, they often remain on our property for a very long time,” Gillikin said, explaining that the reserve doesn’t have the authority to move and dispose of the vessels, even if they’re abandoned. “With Beaufort’s help, we were able to get the remaining three vessels off the reserve.”

Gillikin said that an additional $250,000 from the General Assembly and $2 million from the federal Emergency Watershed Protection Program Fund would be used to remove vessels in sensitive habitats in public trust waters and reserve properties.

In an interview after the meeting, Gillikin said that about 85 displaced vessels and other widespread debris caused by Hurricane Florence remained in the environment, including in sensitive coastal habitats.

“The state will soon receive monies to remove much of the debris and vessels. However, legal authority to remove the vessels is currently limited to jurisdictions that have abandoned vessels laws, although this could change in the coming months,” she said.

Bodin later said that the Coastal Reserve is collaborating with the federation in the abandoned and derelict vessel-removal project and Gillikin is a facilitator for the North Carolina Marine Debris Action Plan leadership team, a multiyear collaborative effort among several organizations to come up with a statewide plan to address marine debris.

Looking ahead

Federation Director Todd Miller explained to the CRC that “this housekeeping we’re doing for the coast is beyond volunteers, even if we do everything perfectly, there’s still going to be lot of debris in the environment.”

He recommended creating capacity to have these large-scale cleanups on an annual basis.

“This is not work that can be accomplished totally with volunteers. It’s tough work,” he said.

Miller told Coastal Review Online that the estimated 400,000 pounds of marine debris included a lot of chemically treated dock and construction lumber.

“The amount of material found in the marshes was astounding and illustrates the need to do a better job of designing and building coastal docks and waterfront development so that it doesn’t create these huge debris problems in the future,” Miller added.

He said that without the capacity to clean up such messes the coast would be littered with hazardous waste and hazards to public health and safety.

The project qualified the Division of Coastal Management for support from the U.S. Department of Agriculture to continue cleanup efforts, Miller said.

“In addition, the General Assembly has provided $1 million to the N.C. Wildlife Resources Commission to remove abandoned and derelict vessels, and the Coastal Federation has also received additional financial help from NOAA to continue cleanup efforts along our southeastern coast,” Miller added.

Bodin said that because several organizations were working on abandoned and derelict vessel removal, the federation was coordinating with the groups to make the process more efficient.

“For the long term, the Coastal Federation will be working on a proposal for a permanent state program,” she said.

Miller said that the combined resources should help in cleaning up the coast from the lingering effects of hurricanes Florence and Dorian.

“We hope to build an ongoing capacity to do these housekeeping projects to keep our coast the envy of the nation for years to come,” he said.

TOPSAIL BEACH – A growing expanse of undeveloped land at the southern tip of Topsail Island is once again on the market, prompting debates and speculation about what could happen to the property if it sells.

The 110-acre tract that stretches from the ocean to New Topsail Inlet to Banks Channel offers stunning, panoramic waterfront views – a potentially high selling point on an end of a barrier island that has consistently been migrating south and gaining ground for decades.

Any developer eyeing the property would have their fair share of hurdles to clear if they wanted to build on the land.

The property is zoned C-4 Conservation District – Inlet Area, which is defined by the town of Topsail Beach as a district designed to preserve and protect areas of environmental concern and identifies land “that is not zoned for residential use.”

The land is also within a federally designated Coastal Barrier Resources Act, or CBRA, zone.

While building is allowed in CBRA (pronounced “cobra”) zones, the federal government discourages development in these hurricane-prone, biologically rich areas by prohibiting federal subsidies, including national flood insurance and Federal Emergency Management Agency aid. Public utilities that have received federal funding are prohibited from providing service to developments within a CBRA zone. Counties and towns that allow developments in a CBRA zone to tap into public utilities run the risk of being cut off from future federal funding.

Thus was the case a few years ago in Brunswick County when commissioners there reversed an offer to let a proposed development in a CBRA unit at the west end of Sunset Beach tap into the county’s public utilities.

County commissioners rescinded their vote to allow a developer to connect to Brunswick County Public Utilities for water and sewer service after receiving a letter from the U.S. Fish and Wildlife Service warning of possible implications for the county if it provided service to the CBRA zone.

Fish and Wildlife officials explained that even establishing connections outside of the CBRA zone and allowing public utilities to travel through private pipes could cause the county to be cut off from receiving future federal funds.

Topsail Beach Town Manager Mike Rose was not available for comment in time for publication of this report.

Town Commissioner Steve Smith said he could not specifically address CBRA restrictions.

“There’s a lot of issues in terms of this property being developed. It’s actually been on the market several times. I think this is just a cycle.”

Steve Smith, Topsail Beach commissioner

“I know the town would follow all the federal and state guidelines to any property like this,” he said. “There’s a lot of issues in terms of this property being developed. It’s actually been on the market several times. I think this is just a cycle.”

The property’s unspoiled, sandy shores have been a popular draw for locals and tourists, many of whom are calling out efforts on social media to conserve the land, which has, for years, been on the radar of the North Carolina Coastal Land Trust.

“We made a serious run at acquiring this property almost a decade ago before the real estate recession,” said Coastal Land Trust Executive Director Camilla Herlevich. “We never did get it under contract.”

Then the recession hit. Grants the trust applied for did not come through. The North Carolina Clean Water Management Trust Fund grant the land trust did receive came in at less than the amount needed to buy the land.

“We are very aware of its conservation values,” Herlevich said. “It would make a great conservation property.”

But coming up with the money to meet the current asking price of $7.95 million, more than three times its listed tax value of about $2.9 million, would be a real challenge for the nonprofit.

“The price right there is not a price that would be easy to put together,” Herlevich said. “That’s a lot of money, so we’ll just have to wait and see.”

The Nature Conservancy’s North Carolina chapter is focusing its efforts in the southeastern part of the state protecting and restoring longleaf pine forests as well as ancient cypress trees on the Black River.

“Currently, the Conservancy is not doing acquisitions on the low-lying islands off North Carolina’s southern coast,” Debbie Crane, the chapter’s communications director, said in an email. “With sea level rise, those areas are likely to be inundated in the not-to-distant future. As we evaluate land acquisition going forward, we are managing to a changing coastline. We are actively looking at providing corridors for species to migrate on our coastal plain.”

North Carolina Coastal Federation Executive Director Todd Miller said in an email that the federation does not have current plans to attempt to buy the land, “and such an acquisition at this significant price will require a lot of leg work and community support to make happen.”

“Such public acquisitions typically take a year or two to undertake, and this one in particular will require a big effort by a lot of collaborating parties to purchase,” Miller said. “Major funds have been earmarked in this year’s state budget (one the Governor has vetoed) by the N.C. General Assembly to acquire property on Lee and Hutaff Islands just south of this property (the other side of the inlet). There might be a chance that additional acquisition could take place in future years to complement that land that is being protected.”

The land is owned by the McLeod Family LLC, according to Pender County property records. Franklin McLeod III of Wake Forest is listed as the principal on company documents on file with the North Carolina Secretary of State’s Office. The real estate holding company was formed in October 2008.

The description in the real estate listing publicized late last week describes the property as “a very unique opportunity to purchase one of the last remaining large oceanfront tracts in the region” with more than a mile of water frontage along the ocean, inlet and Banks Channel.

The property description goes on to state that New Topsail Inlet’s steady southern migration is significant “because while other beaches have seen trends of erosion, the Subject has considerably increased in size due to the steady and consistent accumulation of sand along the oceanfront and southern boundary.”

In March, the North Carolina Coastal Resources Commission approved preliminary boundaries and building rules at inlets.

The proposed updated inlet hazard area, or IHA, includes all of the southernmost end of Topsail Beach. If approved, the IHA at the south end of the island would extend another 170 acres.

The North Carolina Division of Coastal Management recommends that if the inlet continues its southerly migration, the IHA should move with it.

Process to Better Manage Pollution Could Take Years 

RALEIGH — Shortly after noon on July 10, the Lower Cape Fear River ceased to be classified as swamp water.

The action came during the windup of the state’s Environmental Management Commission’s monthly meeting in the Archdale Building on North Salisbury Street and it ends a regulatory saga with as many twists and turns as the Cape Fear River itself.

At the terminus of the journey is the same predicament as when it started: Starved for oxygen, the Lower Cape Fear River is a highly impaired waterway loaded by industrial and municipal discharges and agricultural runoff. At the same time, it’s the main drinking water source in one of the fastest-growing regions of the country.

The swamp water status, in place for about four years, was rejected outright by environmental groups as a way around tighter environmental regulation that conditions in the river required. Last year, after an official review, the Environmental Protection Agency said the state had failed to prove as required that the classification was the result of natural conditions. In a brief two-page letter rejecting the reclassification and parts of the state’s current management plan, EPA officials said there was no documentation provided to support the swamp water classification.

Last week, officials with the state Department of Environmental Quality’s Division of Water Resource said, in light of the repeal of the swamp water rules and the current management plan’s flaws, the next step should be development of a completely new management plan.

The commission obliged and directed the division to develop a new plan for the Lower Cape Fear River Basin.

As the follow-up to the decision last week, the Division of Water Resources is expected to formally request the official rule changes during the Environmental Management Commission’s meeting in September.

DEQ officials said Wednesday that division staff would be meeting soon to work on the next steps in developing the new management strategy. Officials estimated it could take a year or more to complete the science needed to begin developing a plan. The regulatory framework will take longer as will the public review process and an automatic review of any rules that result by the legislature.

As lengthy and complex a process as that’s likely to be, advocates say it is a long-needed reality check.

Will Hendrick, senior attorney with the Waterkeeper Alliance, one of the groups that petitioned the Environmental Management Commission to drop the swamp water classification, said developing a new management plan is an opportunity to take a larger look at the river basin.

“From my perspective, the opportunity that DWR now has is to take a more holistic view about what is causing the problems that it needs to address in the Lower Cape Fear,” he told Coastal Review Online in a recent interview. “The biggest problem with the existing management plan is that it exclusively looked at permitted, point sources and it exclusively looked at new and expanding permits. It didn’t look at who was currently operating, and it didn’t look at non-point source pollution.”

Hendrick said that means taking a serious look at the effect of upstream nonpoint contributors, primarily large-scale animal operations.

“It’s a big and complex system and unless you’re going to look at all the sources then you’re not going to have any chance of solving it. What I hope is that they will meaningfully evaluate all the contributors to the in-stream conditions and not try to hide the ball.”

Brooks Rainey Pearson, the attorney for the Southern Environmental Law Center on the reclassification petition, agreed that a new plan has to include an assessment of the impact of sources upstream.

“We’ll be looking for a plan that includes all sources contributing to the pollution including upstream non-point sources.”

Brooks Rainey Pearson, Southern Environmental Law Center

“We’ll be looking for a plan that includes all sources contributing to the pollution including upstream non-point sources,” she said.

A new management plan could take two to three years to go through the rulemaking process. Complicating the process is how rapidly the areas around the river are changing and a new federal designation that will require additional review.

In August 2017, the National Marine Fisheries Service designated the Lower Cape Fear River as a critical habitat for the endangered Atlantic sturgeon.

Rainey Pearson said that designation will require the Division of Water Resources to craft a management plan that will meet dissolved oxygen levels required to sustain the sturgeon nurseries.

Hendrick said the division will also have to take into consideration the lack of information about the fast-growing poultry industry and its effects on the watershed.

Unlike new hog operations, poultry farmers are not prevented from building in the 100-year floodplain, he said, adding that the state needs to get a better understanding of the size, scope and impact of the growing number of poultry operation in the Cape Fear River basin.

“We don’t have a good monitoring system for poultry,” Hendrick said.

The Long and Winding ‘No’

Although it involved all the complexities of the state rulemaking process and a federal review, for those who have fought the designation, the story of how the river became a swamp is an example of convenience over science.

In spring 2014, the Cape Fear River Program, representing a group of industries and local governments with discharge permits for the river, sought to reclassify the 15-mile tidal, saltwater section from Toomers Creek near Leland to Snows Cut near the Atlantic Ocean from Class SC waters to SW swamp water designation, which would allow for a lower level of dissolved oxygen.

Class SC waters are all tidal saltwater bodies that are protected for recreation such as fishing, boating and other activities involving minimal skin contact; fish and noncommercial shellfish consumption; aquatic life propagation and survival; and wildlife, according to DEQ. The SW classification covers waters that have low velocities and other natural characteristics different from adjacent streams.

The request worked its way through the state review system before reaching the Environmental Management Commission, which approved the change in September 2015 in the face of objections from environmental groups that called the action a thinly disguised attempt to get around regulations.

“The definition of swamp water was inconsistent with the in-stream conditions.”

Will Hendrick, Waterkeeper Alliance

The issue also drew the attention of legislators, prompting an attempt by Rep. Billy Richardson, D-Cumberland, to reverse the new rule. The bill failed to get a committee hearing, but Richardson was able to make his case on the House floor when he offered it as an amendment. He called the swamp water classification “intellectually dishonest.”

The beginning of the end of the swamp water designation came last year after the EPA’s official review that found the state had no data, specifically anything on stream velocity, to back up its assertion that the stretch of river at issue was a slow-moving swamp.

In reality, Hendrick said, the Cape Fear is a fast-flowing river and in the 15-mile stretch that was reclassified it’s likely flowing quickly enough to suppress some of the nutrient retention.

“The definition of swamp water was inconsistent with the in-stream conditions,” Hendrick said, “and the EPA pointed that out.”

Learn More

• North Carolina’s surface water classifications

This story has been updated.

BEAUFORT – The state Coastal Resources Commission is expected to hold a closed-door discussion next week during its public meeting here to discuss a lawsuit pitting private property rights against state oceanfront setback rules, specifically as they pertain to a storm-battered, erosion hot spot on the Outer Banks.

The closed session to consult with the CRC’s attorney about the case is allowed under the state’s open meetings law. The remainder of the meeting that begins at 9 a.m. Wednesday at the National Oceanic and Atmospheric Administration’s Beaufort Laboratory/North Carolina National Estuarine Research Reserve Office, 101 Pivers Island Road, is expected to be open to the public.

The case involves Michael and Cathy Zito of Timonium, Maryland, who had tried to rebuild their vacation cottage on the lot they had owned since 2008 on Seagull Drive in Nags Head after fire destroyed it in 2016. State and local governments denied building permits because the replacement house planned for the same footprint as the two-story, piling-supported original built in 1982 wouldn’t meet state coastal setback requirements.

Homes on Seagull Drive have been the subject of years of legal fights over property rights. But unlike eight other Seagull Drive homes that have been destroyed by storms and erosion during the past decade, an electrical fire was to blame in the case of the Zito’s house. State officials contend that denying permits is necessary because allowing the Zitos to rebuild their home “would constitute inappropriately sited development.”

The Zitos filed the complaint March 6 in the U.S. District Court for Eastern North Carolina, naming the Coastal Resources Commission as defendant. They’re being represented by the Pacific Legal Foundation, a nonprofit formed to fight “government overreach and abuse,” and seek damages of $700,000 for the taking of their private property without just compensation, legal fees and other relief. Pacific Legal, which takes on property rights cases free of charge, says on its website that if the government wants to make private property useless so the public can enjoy it as open space or a beach area, it must pay the owners just compensation. It says the government shouldn’t use a natural disaster to justify cleansing an area of development it doesn’t like or want.

David Breemer is the senior attorney representing the Zitos. He said state officials never had a problem with the Zitos’ home being near the ocean before the fire, and the Coastal Resources Commission had no issue with other homes just as close or closer to the water than the Zitos’ lot.

“So the only risk the Zitos apparently had is apparently the unexpected one that the CRC would use the happenstance of a fire to get rid of a coastal home it otherwise must accept and has accepted as (a) normal coastal structure,” Breemer told Coastal Review Online Wednesday.

The property is designated as part of an Ocean Erodible Area of Environmental Concern, according to the state Division of Coastal Management, where the average annual erosion rate is 6 feet. Over the life of a 30-year mortgage, the ocean could be expected to carve out 180 feet of beach at the site.

Setback rules are geared toward “minimizing losses to life and property resulting from storms and long-term erosion, preventing encroachment of permanent structures on public beach areas, preserving the natural ecological conditions of the barrier dune and beach systems, and reducing the public costs of inappropriately sited development,” according to the division.

Rebuilding in the same spot means the southeast corner of the house would be about 12 feet landward of the static vegetation line, the setback delineation the state uses, and the northeast corner would be about 20 feet landward of the line.

Division of Coastal Management staff contend that while the property is located among other properties that don’t conform to current setback rules, that has no bearing on whether the Zitos face an unnecessary hardship – the basis for granting a variance from the strict application of the rules.

“For them not to be able to rebuild is just really tough for a lot of folks to understand,” said Cliff Ogburn, Nags Head’s town manager.

Ogburn said Wednesday that it’s especially hard to grasp when considering the two other houses in the same area that are closer to the ocean than where the Zitos’ house would be. That the Zitos lost their home through no fault of their own compounds the frustration. Ogburn said the Zitos would likely have many more years to enjoy their home if allowed to rebuild – as long as beach renourishment continues in the area.

“In my opinion, before it burned, the Zitos’ house would have a lot more life left in it than the other houses,” he said.

Although a beach renourishment project in 2010-11 offered some erosion relief in the Seagull Drive area, it was temporary – the vegetation line has since retreated landward and is now roughly where it was prior to renourishment, according to the Division of Coastal Management. The division says granting a setback exception would be inconsistent with the spirit, purpose and intent of the rules.

Ogburn agreed.

“The ill effect of allowing the Zitos to rebuild would be less than allowing the two houses that are farther seaward to remain, but the other ill effect is that if you have a property that doesn’t meet the setback requirements and it’s damaged beyond repair and if you let it go back, then you’re allowing the problems to persist,” Ogburn said. “This property doesn’t meet the setback and, in my understanding, that’s the deal breaker.”

Ogburn explained that since 2008, along that stretch of road, eight homes had been destroyed by storms and erosion. Only two houses remain on the east side of Seagull Drive and five more lots that may have had homes before that time had long been vacant. He said that no matter how unfair it may seem, the state’s coastal management rules exist for a reason, and the town, as the local enforcers of those rules, has much at stake.

“The town’s position has been pretty strong going back to the ’80s. We’ve been dealing with erosion for a very long time,” he said. “People here, at least since 1980 and beyond, they’ve seen the ocean was coming. We’ve been dealing with these houses on Seagull since at least 2008, and it hasn’t gotten any better.”

An attorney who represented the Coastal Resources Commission in the Zito’s variance proceeding, citing state policy, declined to comment on the ongoing litigation but noted that, in federal court, the state and its commissions must be represented by the attorney general’s office.

Other CRC Business

Also on the agenda for Wednesday, the commission is set to hold a public hearing on proposed changes to sandbag rules to allow more flexibility in using sandbags for erosion control around state port inlet areas.

A public comment period is scheduled for 11:45 a.m. The chairman may limit comments to three minutes per person.

Two requests for rule variances are on the agenda as well with one from Robert Stallings IV, who seeks to dredge in Pittman Creek, a primary nursery area in Pamlico County, to provide an access channel to a proposed upland basin with boat ramp and dock, and the other from the N.C. Department of Transportation, which seeks to use sandbags for erosion control at the northern ferry dock on Ocracoke Island.

The commission is to consider a fiscal analysis for a proposed rule change to allow a general permit for temporary structures within coastal shorelines and ocean hazard areas of environmental concern, or AEC, to accommodate scientific research needs.

The commission is also expected to consider a petition for rule-making to change the exceptions to nonwater dependent uses within the 30-foot buffer area of the rules for the coastal shorelines AEC by expanding the reference to “landscaping” to include the use of impermeable materials or “hard landscaping.”

The commission is also expected to hear reports on CRC science panel member appointments and discuss developing a rule to formalize criteria whereby structures and gear associated with a shellfish aquaculture leases are exempt from Coastal Area Management Act, or CAMA, permit requirements.

Learn More

• Meeting agenda

RALEIGH – A recent report from the North Carolina Wildlife Resources Commission recommends putting a state agency in charge of removing derelict and abandoned vessels in navigable North Carolina waters, with dedicated funding to address the problem.

In North Carolina, the legislature has granted limited authority to local governments and state agencies to determine how and when a vessel can be removed. But local officials continue to struggle with abandoned and derelict vessels in waterways and sometimes washed up on public or private lands, threatening navigation and the environment.

The North Carolina General Assembly in 2018 directed the WRC to provide the report by April 30 because of the growing concerns over abandoned vessels and to consult the Division of Coastal Management, North Carolina Coastal Federation, the National Oceanic and Atmospheric Administration Marine Debris program, marine salvage industry experts, commercial and recreational boat owners and other stakeholders.

“The report detailed many different approaches used by other states in the management of abandoned and derelict vessels. It also described some of the challenges other states face in the management of abandoned and derelict vessels based on their management practices and laws in their state,” Ryan Kennemur, public affairs specialist with the state Wildlife Resources Commission, told Coastal Review Online.

The report notes that the resource used as a starting point was current up to 2015 and the researchers reached out to each coastal and Great Lakes state included in the report to update, clarify and collect more data.

In addition to naming a lead state agency to manage the problem, the report also recommends establishing a WRC-coordinated task force for abandoned and derelict vessels, or ADVs, as well as enacting a law defining and addressing ADVs statewide with disposal options and vessel owner notification protocols and rights. The report also calls for establishing education, outreach and prevention programs, including a vessel turn-in program fashioned after those used by other states.

The WRC manages more than 200 boating access areas on public waters across the state and is the chief enforcer of boating safety laws in North Carolina. In addition, the WRC works with local governments to determine no-wake zones.

“The WRC also manages the placement of waterway markers in conformance with the uniform rules to aids to navigation for boating access areas and approved no-wake zones across the state,” Kennemur said.

The University of North Carolina Institute for the Environment and the North Carolina Policy Collaboratory were contracted to research how other states with navigable waterways manage abandoned and derelict vessels for the report.

Researcher Susan Cohen with the Institute for the Environment said that the WRC developed the report’s overall approach to address and meet the North Carolina legislative direction.

She explained that the Institute of the Environment provided a summary of abandoned and derelict vessel programs in coastal and Great Lakes states produced by using sources of existing, current information, including the NOAA Marine Debris Program, with follow-up communications with each of the states to confirm that information. “Other groups, like NOAA for example, have done a great job capturing state-level information and we just built off what these other efforts had accomplished,” she said.

According to the report submitted to WRC, An Overview of State Abandoned and Derelict Vessel Programs, no single federal law is in place to comprehensively address ADVs, especially if navigation hazards or pollutants are not an issue.

Depending on circumstances such as pollution and navigation threats, there are laws and regulations that give authority to certain federal agencies, including NOAA, which is the lead agency on ADVs, the Army Corps of Engineers, the Coast Guard, the Environmental Protection Agency and the Federal Emergency Management Agency, but for the most part, the responsibility ultimately falls on state and local authorities to manage the derelict and abandoned vessel.

“Our primary concentrations within the (report) summary were the status of legislation within each state, where decision-making authority to respond to ADVs lies, the resources expended by each state and the numbers of boats removed. This snapshot provides decision makers with a view of the broad range of strategies used by other states without being prescriptive to how North Carolina should respond,” Cohen added.

The report used NOAA’s “ADV InfoHub,” a website describing how ADVs are handled by each coastal state, as a starting point, compiling existing information on state programs and fact sheets for each state, current through 2015. The report acknowledged that since then, several states have enacted legislation and provided funding to support ADV programs.

The researchers sent a questionnaire by email March 8 with a follow-up March 15 to more than two dozen coastal and Great Lakes states, except North Carolina, to fill in gaps, update and gather information related to legislation, funding and measurable results from ADV programs. Of the 28 states that were contacted, 14 responded.

Results of the questionnaire show that other states typically do not keep detailed records on removed ADVs or funding. Many of those responding to the questionnaire were unable to give numbers on funding or removal efforts.

States that reported the greatest numbers of ADVs between 2013 and 2016 were Ohio, which has no allocated funding,  at 1,400; Texas at 1,080; Florida at 824; California at 657; and Washington, which has a $2.5 million program that has removed more than 700 vessels since 2002, at 366.

Kennemur with WRC said North Carolina does not track the number of ADVs found each year.

The results point to a handful of issues that interfere with managing ADVs in waterways, including the challenge of finding vessel owners, the lack of recurring state funding in 20 of the 30 coastal and Great Lakes states and a lack of understanding as to what authorities are responsible for certain actions and preventive measures.

The report notes that of the 30 coastal and Great Lakes states, 29 had some type of legislation addressing ADVs, with 16 of those states having enacted legislation during the last 10 years. New York is the only state that hadn’t enacted ADV laws.

Also, of those 30 states, 21 have laws that include civil penalties for abandoning or failing to remove a vessel after notice. Twelve states impose criminal penalties for abandoning or failing to remove a vessel after being notified.

Six states have adopted a vessel turn-in program in an effort to prevent vessels that are older or in poor condition from entering the water and becoming an ADV. Although details vary by state, the program allows owners or marinas to turn over vessels to a state or agency for proper disposal at no cost.

Learn More

• Displaced Derelict and Abandoned, a three-part series

Update Thursday: The Coastal Resources Commission on Wednesday granted the State Ports Authority’s requested variance, which will allow the Wilmington port to expand its turning basin to accommodate larger ships in exchange for agreed-upon mitigation measures and other conditions.

WILMINGTON – The North Carolina State Ports Authority this week will appeal its denial for a state permit to expand the Wilmington port’s turning basin, arguing that the economic benefit to make way for larger ships supersedes environmental concerns.

The ports authority will make its case for a variance Wednesday to the Coastal Resource Commission, which establishes coastal management policies and rules. The  CRC is scheduled to meet in Manteo Wednesday and Thursday at the Dare County Government Complex. The agenda for the meeting is available.

The state Division of Coastal Management last month rejected the ports authority’s application for a Coastal Area Management Act, or CAMA, major permit modification to expand the port’s turning basin, a project that would include dredging 17.76 acres designated primary nursery area, or PNA, in the Cape Fear River and the excavation of a little more than one acre of coastal wetlands.

The North Carolina Marine Fisheries Commission designates PNAs to protect habitat, particularly along bottom areas, including sand, mud, sea grasses and oyster rocks. Dredging is restricted in PNAs to protect water quality.

The proposed expansion would include a vertical submerged sheet pile toe wall along the eastern edge of the expanded turning base and dredging to a foot deeper than the current authorized depth of 44 feet.

The division denied the authority’s application, saying it must do so for projects found to be inconsistent with state guidelines for areas of environmental concern and would lead to significant damage to fisheries resources.

Ports officials say the turning basin needs to be expanded 124 feet to accommodate 14,000 TEU (20-foot equivalent unit) vessels, which can carry 14,000 20- by 8-foot shipping containers.

Ships of this size can now be navigated through the Panama Canal, a newly expanded portion of which opened in June 2016.

North Carolina ports authority officials say that in order to meet the demands of their customers who want to use these larger ships to transport goods to and from the East Coast, the Wilmington port needs a larger turning basin.

In its variance request, the ports authority states, “Without the expansion of the turning basin, the (port of Wilmington) would lose the ability for North Carolina to maintain presence in the global container shipping market. The loss of revenue would have a tremendous adverse effect on the Port’s vitality and the North Carolina economy.”

Changing Habitat

Although the state Division of Marine Fisheries, or DMF, did not recommend denying the ports authority’s permit application, it indicated the project would have significant adverse effects on PNA habitat, protected species, fisheries resources and fisheries resources and “would also contribute to significant cumulative impacts to these resources over time,” DCM director Braxton Davis wrote in a March 19 letter issuing the denial.

The PNA in the area of the Cape Fear River the ports authority wants to expand is a feeding ground for a high diversity of species including blue crabs, shrimp, southern flounder, spot and croaker, according to Anne Deaton, a DMF habitat assessment coordinator.

“Tagging studies have shown that sturgeon are all around that area of Eagle Island.”

Anne Deaton, N.C. Division of Marine Fisheries

That area of the river is also habitat for anadromous fish, which are born in and spawn in fresh water, but live most of their lives in salt water, including endangered bottom-feeding Atlantic sturgeon whose diets consist of crustaceans, mollusks and worms.

“Tagging studies have shown that sturgeon are all around that area of Eagle Island,” Deaton said. “They are migrating up and down that system. We know Atlantic sturgeon are already getting hit by ships on occasion. If they deepen it for larger vessels it’ll lead to more ship strikes.”

A March 14 memorandum from marine fisheries to coastal management notes that expansion projects at the Wilmington port have altered PNA habitat over the years.

Some of the most notable projects, according to the memorandum, have occurred since the ports authority was granted a modification to its CAMA major permit in 1987 authorizing hydraulic dredging of the shipping berths.

In 1996, the port deepened the river by 4 feet and, in 2015, dredged in an area of the river that had not been dredged as part of a project that included relocating a docking facility.

That project permanently altered more than seven acres and removed 300,000 cubic yards of PNA benthic habitat, according to DMF officials.

The Cape Fear River’s bottom habitat and water quality is impacted throughout the year, every year by various projects.

Some of those include routine agitation dredging along the ports berthing areas and routine annual federal dredging within the Wilmington Harbor area.

Deaton said she cannot say the PNA habitat in that area of the Cape Fear is pristine because of the history of disturbances that have occurred over the years.

“But the fact that there are still strong fish numbers in the area tells me they depend on it somewhat,” she said.

Deaton said that river bottom habitat will recover, but the impacts from dredging “can alter what kind of species are there.”

DMF’s memorandum concludes, “the proposed activities have the potential to permanently alter the shallow PNA habitat into a maintained deep water soft bottom, degrading the PNA habitat.”

Keeping the Playing Field Level

Bethany Welch, N.C. Ports senior manager for communications and business outreach, responded in an email to a request for comment, stating: “North Carolina Ports continues to follow the proper steps in the permitting process for the turning basin expansion project.”

Wilmington hosts one of two state ports in North Carolina. The other is in Morehead City.

The port in Wilmington is the only one equipped to accommodate container vessels. Container business makes up nearly half of the more than $38 million in annual revenue generated at the port, according to the ports authority’s variance request.

“While the annual revenue to the Port itself is significant, the economic benefit to citizens of North Carolina with access to global shipping operations is exponentially larger,” the request states. “A single Far East Service has a direct economic impact of $3.8 billion per year.”

Goods are imported and exported through the port from across the globe, particularly from Asian countries.

To keep shipping costs down, companies prefer to use larger ships that can carry the most goods.

Now that larger ships can navigate through the Panama Canal, those companies want to use them.

Except for the turning basin, the port of Wilmington already has the infrastructure to accommodate 14,000 TEU container ships.

“The global economy will continue to exist with or without the (port of Wilmington), but without the POW, North Carolina will suffer greatly,” ports officials state in the variance request.

“The global economy will continue to exist with or without the (port of Wilmington), but without the POW, North Carolina will suffer greatly.”

N.C. State Ports Authority

Ports officials say there is no other practical alternative to enlarge the turning basin.

In the variance request signed by North Carolina Special Deputy Attorney General Scott Slusser, the ports authority argues that past dredging to maintain the navigation channel and turning basin has reduced the estuarine value and diminished coastal wetlands in the area.

In an effort to offset the impacts to the river and wetlands, the ports authority has agreed to a mitigation plan.

Mitigation would include the following:

• Excavating phragmites to create tidal pools on 6.75 acres on the ports’ Brunswick River property near the project area. Phragmites is an invasive species that crowd out or shade native vegetation in wetland areas.
• Donating $800,000 to complete construction and monitoring of a fish passage at Lock and Dam No. 1 for the purposes of restoring anadromous fish populations in the Cape Fear River
• Enhancing tidal habitat by excavating phragmites on 1.75 acres on port property
• Creating a perpetual conservation easement on 30.2 acres of port property that is primarily brackish tidal marsh and wetlands east of the Brunswick River
• Begin construction no earlier than July 1 to minimize impacts to estuarine juvenile fish

A Hasty Time Frame

Officials at the division say there was not enough time to adequately review the proposed project’s impacts and negotiate a mitigation plan because the ports authority did not put a hold on its permit application “due to their internal schedule,” according to the division memorandum.

That put a rush on DMF officials, who could not provide “appropriate comment” to the CRC before the 150-day deadline.

“We aren’t happy with it, but we’ve agreed to their mitigation,” Deaton said.

DMF warned in its March 14 memorandum “the mitigation decision should not serve as a precedence for what is to be considered adequate mitigation for any future projects.”

“Because of this time frame, we’re really concerned with the process,” Deaton said. “Normally with these things there would be a lot more discussion and planning. If it hadn’t been so rushed it would have been a better process.”

Division of Water Resources public relations officer Christy Simmoms said Friday in an email that the division was still reviewing the application and a decision had not been made whether to issue a 401 water quality certification for the proposed project.

If the commission does not grant the variance, the ports authority may appeal the decision to Superior Court within 30 days of the CRC’s order.

WILMINGTON – The time it takes to get a permit in coastal North Carolina for one type of living shoreline just got a whole lot faster and less expensive.

The North Carolina Division of Coastal Management earlier this week announced its release of an amended general permit for marsh sills. The state permit mirrors the U.S. Army Corps of Engineer’s new general regional permit that rolled out March 22, streamlining a process that, on average, spanned an average of two and a half months.

“They’ll basically get their permit on site if they meet the conditions,” said Henry Wicker, the Corps’ deputy chief for the regulatory division at its Wilmington district office.

This puts the permitting process for marsh sills on par with how long it typically takes an applicant to receive a permit for hardened shoreline erosion control structures like bulkheads and riprap, or stone revetments.

Marsh sills are a type of living shoreline that are made of wood or rock designed to protect existing or newly planted wetland vegetation by dissipating wave energy and reducing shore erosion.

The general regional permit does not allow fill to be placed landward of a marsh sill.

Ronnie Smith, special projects manager of the Corps’ Wilmington Regulatory Field Office, said work began on a general regional permit for marsh sills about two years ago.

Several state and federal agencies – DCM, North Carolina Division of Marine Fisheries, National Oceanic and Atmospheric Administration, U.S. Fish & Wildlife Service and National Marine Fisheries Service – collaborated to create the permit’s conditions.

Wicker said the Corps had worked closely with those agencies as well as the North Carolina Coastal Federation and other environmental groups to create a “non-reporting” permit, meaning the Corps does not have to inspect a site as long as the state deems the permit conditions have been met.

Living shoreline proponents have long sought changes in what they say has been a permitting process that was a deterrent to natural shoreline erosion control.

“I don’t think you can underestimate the disincentive from before,” said Tracy Skrabal, a coastal scientist and manager of the federation’s Southeast Regional Office in Wrightsville Beach.

Until now, an applicant had to apply for a Coastal Area Management Act, or CAMA, major permit.

Overall, that permitting process cost more – the application fee was typically $400 for marsh sills – and took an average of 75 days.

“Those things kept most people from even considering a sill because they could get a permit for a bulkhead or a riprap in less than a week,” Skrabal said. “This actually levels the playing field because it creates a rapid review, a rapid approval process that is on the same playing field with bulkheads and riprap.”

Since the mid 2000s the state has granted CAMA major permits for about 80 marsh sills, according to Daniel Govoni, DCM policy analyst and federal consistency coordinator.

Talk of streamlining the permitting process for marsh sills spans back years as research increasingly shows that man-made shorelines that mimic nature are better for estuaries than rock or wooden seawalls and bulkheads.

Living shorelines generally work best along sheltered coasts such as estuaries, bays, lagoons and coastal deltas, where wave energy is low to moderate.

More Resilient During Storms

Marsh sills are proving to better withstand coastal storms than hardened structures.

“Post Hurricane Florence all indications show marsh sills have been very resilient as opposed to bulkheads,” Govoni said.

Hurricane Florence left a massive trail of destruction, damage and debris in its wake after making landfall near Wilmington in September 2018.

The storm damaged the bulkhead lining the larger portion of John Stanback’s waterfront property on the Core Sound in Marshallberg, a small community in Carteret County.

Stanback, who had learned about living shorelines from literature published by the federation, decided to replace the bulkhead with a marsh sill along the approximately 200-foot shoreline.

“I think it’s a beautiful way to help restore oysters and a more natural way to protect the shore,” he said.

The Stanbacks, whose primary residence is in Chapel Hill, hired forestry and natural resources contracting firm Carolina Silvics to do the work.

The couple were advised to put off the work until the marsh sill permits’ release.

“We were thrilled to hear about that,” Stanback said, referring to how the permitting process would be much quicker.

Their project is to be constructed with bagged oyster shells.

“The oyster bags are actually there waiting for us,” Stanback said. “We can’t wait to get them into the water.”

Grainger Coughtrey, a forestry technician with Carolina Silvics, said he expects more work from the construction of living shorelines.

“We just finished one two or three weeks ago and we have one more lined up and we’re hoping to take on some more this summer,” he said, adding that acceptance of marsh sills will grow as more people see how well they withstand storms. “With the general permit, now the process isn’t very difficult at all.”

And with a $200 fee, it’s half the cost of what a CAMA major permit fee typically was for marsh sill projects.

Despite mounting evidence that living shorelines are highly effective in protecting waterfront property and better for the environment, hardened structures continue to be the primary go-to for shoreline erosion control.

NOAA estimates that nearly a third of the nation’s contiguous estuarine shoreline will be hardened by 2100 if the structures continue to be built at the current rate and the coastal population continues to grow.

A 2015 study published by a team of academic researchers estimates that more than 14,000 miles – 14% of continental U.S. coastline – has been armored with hardened structures. The study called that a conservative estimate.

The hope is that the new permitting process will tip the scales where marsh sill projects are the norm rather than the exception.

“We’re hoping that this adds to the equation to help promote the use of living shorelines, particularly marsh sills,” Govoni said. “This is a great step to try and promote marsh sills going forward.”

The state Coastal Resources Commission approved the amended general permit for marsh sills during its quarterly meeting in February.

The permit became effective as a temporary rule April 1. DCM officials will ask the CRC to permanently adopt the rule during the commission’s April 17-18 meeting in Manteo.

Once adopted, the rule will go back to the state Rules Review Commission for final approval.

Learn More

• Coastal Management Permits

TOPSAIL BEACH – A Winston-Salem-based nonprofit granted $5 million in state funds aims to complete what could turn out to be several long-term, storm-mitigation projects along Topsail Island.

Resource Institute, or RI, which received the multi-million-dollar Division of Water Resources grant last year, will spearhead a yet-to-be formed committee that will prioritize a list of proposed projects in the three towns on the island.

The list of 23 proposed projects the towns submitted to RI totals an estimated $40 million and covers everything from stormwater mitigation to beach access ramps for vehicles, pumping systems for flood waters and sea oat planting to stabilize dunes, according to institute officials who provided the information.

“Projects that addressed water quality. Projects that addressed your drainage issues,” said Michael R. “Squeak” Smith, RI’s board chairman.

Projects proposed by North Topsail Beach, Surf City and Topsail Beach range in estimated costs from $15,000 to $15 million.

Smith and Charles Anderson, RI’s consulting agent, met last week with the Topsail Island Shoreline Protection Commission, or TISPC, in Topsail Beach to explain the role of the committee.

The task force, chaired by either Smith or Anderson, will consist of representatives appointed by each town (one person per town), two sitting RI board members — Dick Barber of Washington, North Carolina, and Roy Pender of Southport — and North Carolina Coastal Federation Executive Director Todd Miller. RI has asked town officials to submit the names of prospective task force members by Feb. 15.

The committee will review and rank each project, then those projects selected by the committee will be sent to Raleigh for approval.

“We’re going to come up with a vetting format to rank the projects,” Smith said. “Everybody gets one vote. Each project will have a number and, at the end of the day, each project will be ranked.”

The concept, he said, is that the $5 million will be allocated to projects that will help the towns recover more quickly after hurricanes.

When RI initially received the grant last summer, the nonprofit was instructed to use the money to work with coastal local governments and engineering firms “to explore opportunities for the development and implementation of emerging techniques that can extend the useful life of beach nourishment projects,” according to state budget language.

“Do something that’s going to be much longer term than pumping sand down the beach,” Smith said.

After Hurricane Florence hammered the North Carolina coast in mid-September of last year and beach towns suffered the remnants of Hurricane Michael later that same month, state lawmakers decided to change the wording, honing in on Topsail Island.

Storm surge pummeled the island’s dunes, stripped the beaches of tons of sand, leveled shoreline berms and damaged a multitude of homes and businesses. Both North Topsail Beach and Surf City are currently operating out of temporary town halls.

Resource Institute has done some work on coastal projects, including at the historic Brunswick Town/Fort Anderson site, where the largest state permitted living shoreline project is underway on the banks of the Cape Fear River in Brunswick County.

A majority of the institute’s work has historically dealt in inland stream- and wetlands-restoration projects.

Questions and rumors circulated as to why this particular nonprofit – based more than 200 miles west of the coast – was granted the funding to work on coastal storm mitigation projects.

Anderson explained in an interview before the TISPC’s Jan. 24 meeting that the nonprofit recognized a need along the coast.

“It came down to the coast needs a lot more help right now,” he said. “We are a project-driven organization nonprofit. If it can’t be a tangible item that we can see we prefer not to be involved.”

RI works with other nonprofits, local governments and private entities to aid in the planning, design, and engineering of projects. It also helps find funding sources for those projects.

Smith said he believes there will be more opportunities to get additional funding for hurricane recovery, money that could be put toward the projects that make the cut.

“We’re here for the long haul to get this stuff done and I look at this initial $5 million as a starting point,” he said to the commission last week.

Miller, who is to be a voting member on the committee, had not seen the project list, but he said the grant amount would be a big investment for stormwater retrofit and living shoreline projects.

“Those would be pretty significant because those things are widespread,” he said. “I welcome the opportunity to speak with the town officials about stormwater opportunities and living shoreline opportunities. Most of those can be done fairly quickly.”

RI has sent a draft agreement to the state with plans to form the project-selection committee within the coming weeks.

Anderson said the goal is to get projects on the ground within a year of approval.

“Our objective is to speed this thing along, make it happen,” he said. “We want to spend this money within 12 months.”

SURF CITY – A newly adopted town ordinance that regulates stand-alone decks on oceanfront properties too small to construct homes is stirring a debate about the rights of property owners, dune protection and interpretation of state rules.

Beachfront property owners in Surf City will continue to be allowed to build private decks and crosswalks on lots that, because they do not meet the state setbacks from the first line of dune vegetation, are deemed unbuildable.

These structures are permitted as long as they meet the rules set forth by the state Coastal Resources Commission, or CRC, and local government rules.

Under Surf City’s ordinance amendment the town council adopted Jan. 2, oceanfront property owners of unbuildable lots may construct single-level decks of no larger than 500 square feet. No more than 200 square feet of a deck may be covered.

Those size limits are identical to the CRCs, a point Surf City Mayor Doug Medlin reiterated when refuting the term “mega decks” as they are referred to by some property owners opposed to the town’s ordinance.

“It was legal before,” Medlin said. “This was more or less just a clarification.”

The ordinance specifies what uses are and are not allowed in relation to decks and accessways on unbuildable oceanfront lots. The town requires an applicant to obtain zoning and building permits prior to construction in addition to a Coastal Area Management Act, or CAMA, permit.

A 24-foot-wide access drive is allowed to be built so an owner may access their private deck or walkover.

Pools cannot be constructed on these lots. Overnight stays, RV hookups and any type of commercial use, including renting out a deck for uses such as parties, are also prohibited.

That last exclusion is what initially caught the attentions of Marcus and Janet Norton. Realtor signs placed on a series of undeveloped beachfront lots adjacent to their North Shore Drive home advertised the plots as “party deck” lots, Marcus Norton said.

The Nortons delved into local and state rules pertaining to the structures, ensuing what has resulted in a debate about the interpretation of both the town’s and state’s regulations, and whether these structures affect the integrity of the dune over which they’re built.

“There’s a lot of people concerned about these so-called mega decks,” Marcus Norton said. “These things are the size of a small house. These are dune lots, unbuildable dune lots, and they are there to do what dune lots do and that’s protect from the storms and the nor’easters.”

The term “mega deck” refers to the overall construction – deck, covering and accessway – on an unbuildable lot.

“We don’t have a problem with a crossover,” Marcus Norton said. “I think just about everybody in the town is OK with that. But when you attach that crossover to these decks, then that’s a different story. When you start putting 700 or 800 square feet of structure out there any vegetation that’s there, it all dies. The impacts to the dunes are a major concern for us.”

The Nortons argue that these independent, freestanding structures are not in compliance with the CRC rules. They tried to appeal the minor CAMA permits issued to a couple of the oceanfront properties.

Coastal Management rules state, in part, that decks and crosswalks will be permitted only if they are “not essential to the continued existence or use of an associated principal development.”

Marcus Norton interprets that to mean the structures are to be an accessory to a home.

The state Division of Coastal Management public information officer Sarah Young said in an email that exceptions to oceanfront setbacks do not require the structures to be accessories to principal uses.

“I can’t do anything about how they interpret it other than point it out,” Marcus Norton said. “We’re just frustrated that nobody is taking a look at this. If you put 14 or 15 mega decks all in a row, that completely changes the character of the beach.”

Freestanding decks and private crosswalks can be found along Topsail Island’s nearly 26-mile ocean shoreline.

The state permits this development if it is landward of the vegetation line or static vegetation line and does not alter or remove primary or frontal dunes.

“In cases where a structure is proposed that is inconsistent with oceanfront setbacks, the Coastal Resources Commission’s (CRC) rules outline a number of grandfathering provisions and exceptions that may apply,” Young stated. “These provisions can depend on historical erosion rates, when a lot was platted, the type of structure, etc.”

The division is in the process of creating oceanfront setbacks from beach being designated as unvegetated following Hurricane Florence. Unvegetated beach are areas where there is no stable natural vegetation. This designation can be permanent or temporary.

Young said if a vegetation line recovers naturally over time or through future beach re-nourishment and dune restoration projects, setbacks could be changed on individual lots.

“DCM will need to continue evaluating each property on a case-by-case basis in order to determine what can or cannot authorized,” she said.

Local governments have the right to enact additional restrictions on the size, use or other aspects of decks and accessways.

Some beach towns, including Surf City’s neighbor to the south, Topsail Beach, follow the state’s laws.

“The state regulations are quite clear in (Ocean Hazard Areas of Environmental Concern) on how they can be built,” said Linda Vescovi, Topsail Beach town planner.

The CRC late last year made changes to the rules pertaining to accessways. Current rules require beach accesses extend no farther than the first line of stable and natural vegetation.

Last November, the commission adopted changes that will allow accessways to be built up to 6 feet beyond the vegetation line as long as it does not interfere with public trust rights or emergency access along the beach.

This provision applies only to proposed accessways larger than 6 feet wide and used “for purposes other than pedestrian use,” Young said in an email. The changes go into effect Feb. 1.

The town nor DCM keep records of how many unbuildable oceanfront lots are in Surf City.

The town owns 13 unbuildable beachfront lots, a majority of which over the years have been donated to the town by property owners who no longer want to pay taxes on land they cannot build homes on.

At one time, homes stood on many of the unbuildable lots.

Hurricane Fran changed the towns beach profile when the Category 3 storm hammered the North Carolina coast in 1996. Dozens of oceanfront homes were destroyed and lots, due to the loss of sand, did not meet CAMA building setbacks.

Over time, property owners whose homes are located behind the beach road, have bought the unbuildable oceanfront lots adjacent to their land, Medlin said.

“They’ll buy the oceanfront lot in front of them then they’ll build their own deck or crosswalk,” he said.

But some owners of oceanfront unbuildable lots have opted to keep the land and build private decks and crosswalks.

“The people own the property,” Medlin said. “They pay taxes on it. They should be able to use their property what little bit they can as long as they meet the regulations. If they meet the state regulations it would be hard for us to stop them anyway.”

NORTH TOPSAIL BEACH – A portion of North Topsail Beach is being removed from a longstanding designation that exempts property owners from receiving federal aid.

H.R. 5787, The Strengthening Coastal Communities Act of 2018, recently signed by President Donald Trump, amends the Coastal Barrier Resources Act, or CBRA, to create more accurate digital maps of units of the John H. Chafee Coastal Barrier Resources System, or CBRS.

The new law means minor changes for North Topsail Beach, a town where roughly 70 percent is within a CBRA, pronounced “cobra,” boundary and has spent years trying to get changed. Digital maps will also include modifications to the Pine Island Bay Unit north of Duck in Currituck and Dare counties, the Roosevelt Natural Area Unit in Pine Knoll Shores in Carteret County, and the Hammocks Beach Unit in the Onslow Beach Complex in Onslow County.

Nearly 80 structures, including the Topsail Reef condominiums, within a half-mile stretch of the North Topsail Beach will be removed from the designation, according to the town’s Mayor Dan Tuman.

That will still leave more than half of the town’s beach – 6 miles of 11.1 miles – within a CBRA boundary where it does not qualify for federal storm risk reduction and recovery spending.

There are about 2,600 residential structures in the town and roughly 60 percent of them are inside the CBRA boundary, Tuman said.

Anyone who owns property within the CBRA unit cannot participate in the National Flood Insurance Program, or NFIP, or apply for a Veterans Affairs loan.

Congress created CBRA in 1982 to discourage building on relatively undeveloped barrier islands by cutting off federal funding and financial assistance in hurricane-prone, biologically rich areas.

The National Audubon Society has praised the new law’s revisions, which will include an additional 17,000 acres of coastal area.

Audubon President and CEO David Yarnold said in a statement following the passage of H.R. 5787 that the revisions and updates to CBRA are “good news for both people and birds who live along the coasts because between rising seas and suturing hurricanes, the best answer right now is not concrete walls and sandbags, it’s naturally resilient coasts.”

“Since it was signed into law by President Reagan in 1982, the Coastal Barrier Resources Act has kept more than 3 million acres of flood- and storm-prone shoreline natural, buffering nearby communities and shielding taxpayers from the costs of recovery and redevelopment,” Yarnold said.

The U.S. Fish and Wildlife Service, which is responsible for designating and mapping CBRA units, determined at the time that since the unincorporated north end of Topsail Island was largely undeveloped, the land met the criteria to be placed within CBRA.

The agency designated more than 6,000 acres as CBRA lands.

North Topsail Beach officials have steadfastly argued the town’s CBRA boundaries are erroneous because land in the zone was already under development and had a full complement of infrastructure, including roads, water, sewer and power before CBRA was enacted and prior to the town incorporating in 1990.

The causeway linking the mainland to the north end of Topsail Island was also built prior to CBRA.

“The area of the north end of the island was developed by their standards, but it was included,” Tuman said. “All of North Topsail Beach, for the criteria of the original intent of CBRA, should not have been included.”

Properties along the Intracoastal Waterway that are inside the town limits, but do not have direct access to utility services, such as water and electricity, would not qualify to be removed from CBRA, he said.

Town officials persist in their argument that residences and businesses that are adjacent to infrastructure should be removed from the designation.

The late Marlow Bostic, the man responsible for much of the town’s original development, filed a federal lawsuit to block the CBRA inclusion. A district court judge denied the request by Bostic and a handful of North Topsail property owners for a temporary restraining order and preliminary injunction, ruling that the CBRA designation was justified. The court of appeals upheld the court’s ruling and dismissed the case.

The town has increasingly gained support in recent years from congressional lawmakers, including U.S. Sen. Thom Tillis, R-N.C. and U.S. Rep. Walter B. Jones, R-N.C.

In August 2017, Tillis introduced S. 1745, which would revise the boundaries to remove all of the structures in North Topsail Beach currently within the CBRA. The bill, co-sponsored by U.S. Sen. Richard Burr, R-N.C., was referred to the Committee on Environment and Public Works. There has since been no movement on the bill.

Tillis said in a statement that he supports the Strengthening Coastal Communities Act and indicated he would continue to push getting more of the town out of the CBRA boundary.

“While this legislation doesn’t fully resolve the error created when the maps were originally drawn, it is a significant improvement, and I remain committed to making sure that we fully resolve the original mapping error,” Tillis said in a press statement.

Tillis’ press secretary Adam Webb stated in an email that the senator is “committed to working on fully resolving the issues” at North Topsail Beach.

“We are currently working with relevant stakeholders to evaluate our options to fully correct the outstanding CBRA map issues,” Webb said in the email.

Jones, as well as former U.S. Sen. Kay Hagan, a Democrat, have also introduced bills to revise the CBRA designation in North Topsail Beach.

In December 2017, Jones submitted H.R. 4692. The bill was referred in January 2018 to the House subcommittee on Water, Power and Oceans.

Tuman said the town is depending on Tillis and Jones to persist in getting the various committees to review the bills.

SUNSET BEACH – The Sunset Beach Town Council has reached a compromise on a controversial proposed dredging project in the waterways around the island.

On the heels of about two years of debates and discussions, the council appears to be moving forward with plans to dredge a portion of, but not all of Jinks Creek.

Council members have agreed to pull north Jinks Creek, which has never been dredged, from the town’s dredging proposal, which includes roughly 3 miles of canals and feeder canals, including Mary’s Creek, Turtle Creek and south Jinks Creek.

The proposal to dredge Jinks Creek has been particularly controversial because of environmental concerns.

Jinks Creek is not designated a primary nursery area, or PNA, by the state, but the tidal marshes lining both sides of the creek are.

The North Carolina Marine Fisheries Commission designates PNAs to protect habitat, particularly along bottom areas, including sand, mud, sea grasses and oyster rocks. Dredging is prohibited in PNAs and shoreline development in these areas is restricted to protect water quality and limit stormwater runoff.

Jinks Creek is roughly a mile long and connects Tubbs Inlet with the Intracoastal Waterway, providing ocean access to property owners who live on the eastern end of the island.

Shoaling has clogged the canals and the waterways they lead into, making it difficult for boaters to reach the Atlantic Ocean outside of a short window that’s based on the tide, according to proponents of the dredging project.

South Jinks Creek was dredged once, more than 40 years ago by Mannon Gore, who purchased the barrier island in 1955, to create man-made canals.

“I have some reservations, but knowing the CAMA (Coastal Area Management Act) rules and knowing that south Jinks Creek has been dredged before in the creation of these canals, I don’t object to it,” said Sunset Beach Councilwoman Jan Harris. “But, there is concern that dredging the south Jinks Creek will or could potentially cause harm to the west end of Ocean Isle Beach and the east end of Sunset Beach properties. The concern is that you’re opening this up to more water flow, which can, in storms especially, cause damage to properties.”

There are about 300 properties, including yet-to-be-developed lots within two new developments, along the canals proposed to be dredged.

Councilman John Corbett’s home is on one of the canals.

“The shoaling is getting very bad,” he said. “It is visibly filling in, to the naked eye, to the non-expert eye. Action needs to be taken. Otherwise, for the people who live there, they bought in good faith that they bought property where they can use boats. There’s a lot of complexity to this. There’s a lot of issues being thrown out there.”

The canals were last dredged in 2002.

“It should have been dredged again around 2010,” Corbett said.

He disputes claims by opponents that those in favor of the dredging project want to open up the waterways to facilitate yachts.

“Anybody who’s been on a boat knows you can’t get a yacht back there,” Corbett said, adding that the norm for boats in that area range between 17 feet to about 23 feet. “When you start getting much bigger than that it doesn’t work back there. These are small pleasure boats for riding around, fishing. They’re not deep-sea, oceangoing pleasure boats.”

Palm Cove, one of the new developments on the east end of the island, includes 10, approximately 1-acre lots. The developers received approval to install a nine-slip dock with slips that are not large enough to accommodate yachts, Corbett said.

Corbett’s property includes a boat dock, but he does not own a boat. He said he’s put off buying one because of the limited access to open waters.

“It is possible that we are told we have to find an access way outside of the canals that get dredged,” he said. “That’s still to be resolved. The key point is that we have all agreed to put in the permits for everything except north Jinks Creek.”

The council anticipates the town will have to seek a variance from the state in order to obtain a CAMA permit to dredge.

Corbett explained that dredging the finger canals, but not the entire channel, could create a hole around the canals causing water to pool, which could affect the water quality.

Town officials originally planned to get a permit application in to the state and seek a variance request at what was supposed to be the Coastal Resources Commission’s quarterly meeting in September. That meeting was canceled in the wake of Hurricane Florence.

The council was scheduled to meet Monday, but only an update presentation on shoreline management and pre-dredging analysis was listed on the agenda for the meeting. It remains unclear when the council will vote to move forward with the permit application.

“I can guarantee you our next couple of meetings are probably going to be very fairly heated,” Corbett said.

As the council continues to hash out details of the proposed project, the Brunswick County Environmental Action Team, or BEAT, is set to host a forum Thursday evening to discuss the potential effects of the proposed dredging project.

BEAT co-founder and former president Neil Gilbert, who lives on the mainland in Sunset Beach, said the forum will cover the science of barrier islands, how they’re dynamic landforms, the importance of tidal creeks around them and dredging impacts.

“This is all about education and information for the public,” Gilbert said. “I’m hoping this event will be a positive thing for Sunset Beach.”

Gilbert said he has no personal stake in the dredging project. He understands why property owners on the east end of the island want the dredging.

“Personally, because my main concern is the environment, I do not want to see it dredged,” he said.

The town has received a state grant that will cover two-thirds of the cost of the project. Property owners with direct access to the dredged waterways will be assessed to cover the remainder of bill.

Still, Harris said it was unclear as to whether the more than $4 million grant will cover the cost of placing sand dredged from the canals and channels on dry land.

Only sand dredged from south Jinks Creek is beach compatible and the Army Corps of Engineers has denied the town’s request to place the remainder of the dredged sand onto area spoil islands, Harris said.

“There’s a lot of questions out there that have been asked, but we never get the answers,” she said.

Learn More

• Sunset Beach Navigation Project Update to Town Council – Sept. 4

At some point in the recovery phase of nearly every major storm in North Carolina, there’s a shift from a flood response to a housing crisis.

In the short term, there is emergency funding for temporary housing as flooded-out homes and businesses are gutted and, if possible, made livable again. The Federal Emergency Management Agency provides funds for hotels and short-term rentals, but despite talk of resilience, in the long run there is little in place to break the cycle of residents returning to areas that are proven vulnerable to flooding time and again.

Grady McCallie, policy director at the North Carolina Conservation Network, said that as environmental organizations craft their proposals for policy changes and what to fund, there’s a recognition that there needs to be a comprehensive vision for dealing with increased flooding and more severe storms in the state’s coastal plain.

“The idea is, ‘how do we get stuff out of the floodplain that shouldn’t be in floodplain?’ And then, ‘how do we manage the floodplain in the future?’” McCallie said. Housing, he said, is a key part of that.

“Just getting people back into their homes is not a long-term solution. If all we do is get everybody back to the same place they were before Florence struck that wouldn’t be enough, because some other one is going to come along.”

Moving people out of the floodplain is going to take a long-term effort, he said, starting with making sure they have somewhere to go that’s affordable. “You can’t just buy people out with nowhere to go.”

In the coming months, as policy makers look at a recovery effort that will in all likelihood overlap with those started two years ago after Hurricane Matthew, moving more people out of the floodplain will be an overarching goal. It’s much of what resilience boils down to in eastern North Carolina.

Moving homes and businesses has proven to be a difficult, expensive process, however, and as recent evidence of little progress on long-term housing in response to Hurricane Matthew shows, it’s also a painfully slow process.

University of North Carolina Chapel Hill researchers Todd BenDor and David Salvesen, who recently published a report on buyouts that looked at strategies and tracked what happened to properties in eight North Carolina communities, said the impact of Hurricane Florence as the state is still recovering from Hurricane Matthew is evidence of the need for a long-term strategy for buyouts and housing for eastern North Carolina.

The report, funded by a grant from the North Carolina Policy Collaboratory and released in August, found a number of flaws in the way buyouts are done, first that they’re almost always reactive and not a part of an overall strategy.

“I don’t want to give the impression I’m against buyouts, I think they are an important part of mitigation, but the way they’re currently designed isn’t working for municipalities or for homeowners,” said Salvesen, a research associate with the Institute for the Environment who specializes in land use and assistance to communities. “Often these are done in haste after a disaster when there is little time and few options and that doesn’t work. Municipalities get stuck with this checkerboard pattern of buyouts because they can’t get everybody to participate.”

People don’t want to move for a variety of reasons, he said, such as longtime family ties to properties, wanting to stay near friends and most often, not being able to afford a move.

“Unless those issues are addressed you’re not going to get all the homeowners to participate,” Salvesen said. “What that means is a local government saddled with this scattershot of vacant lots they have to take care of.”

For many towns, maintaining what the study terms a “checkerboard” of holdouts and bought-out lots has added to maintenance budgets as well as preventing the area being converted to public use or returned to its natural state.

“You have to find out a way to string them together, so you can do something to them,” he said. “You can’t create a baseball field if there’s a house sitting on second base.”

BenDor, a professor with University of North Carolina-Chapel Hill’s Department of City and Regional Planning, said the checkerboard result is the opposite of what’s needed.

“It’s the worst of all worlds,” he said. “You still have to maintain the areas when they become public property and you can’t get rid of most of the infrastructure. Part of the fiscal benefits and the environmental benefit is when you remove houses, in theory, you remove the infrastructure.”

The checkerboard problem, he said, means governments still must maintain water and sewer lines and fix roads for just a few residences. “That’s untenable for a lot of lower-income communities,” he said.

In addition, to maintain the properties most communities mow the lots, he said. That’s also the wrong strategy for the environment.

“A city has political pressure to just go in and mow it, which is exactly what we don’t want to be doing in floodplains from an environmental perspective.”

By restoring an area to its natural state, usually a forest, BenDor said, a city can increase its capacity to deal with floodwaters, a move that increases surrounding land values.

Salvesen and BenDor said the sequence for buyouts has to change. Although there are some funds for pre-disaster mitigation, the biggest funding for buyouts comes after a disaster through hazard mitigation and community block grant funding.

That’s the wrong time to do a buyout, Salvesen said.

“Don’t do it after the flood happens, that’s too late,” he said. Everyone is stressed out. It’s a tragic event. You have to do it in advance, but that’s really hard to do because the big chunk of federal money comes after the flood happens. That has to change.”

To make buyouts work, BenDor said, state and local governments need to see them not as a reaction to a disaster but part of a long-term resiliency effort that includes having affordable housing options out of the areas prone to flooding.

“Understanding where people go matters a lot,” he said. “For instance, there’s a lot of evidence that folks that take buyouts actually move into other high-hazard areas. The point of buyouts is to get people out of these flooding situations but if they move directly back into a bad situation that’s a huge problem.”

After Hurricane Fran, a state buyout program augmented incentives for people to relocated outside of the floodplain, he said. It also added encouraged people to stay in their communities.

“Buyouts are not intended to get people to leave the community, they’re to get them out of high hazard situations,” BenDor said.

Defining those areas is another big hurdle for planners.

“Reviewing the floodplain maps every five years is not going to cut it anymore,” BenDor said. “It’s got to be something we have a much better handle on and it’s really worth having a conversation how we can do that.”

In the months ahead, there’ll be a major effort to move people out of harm’s way, he said, “except harm’s way is changing.”

Salvesen said having two major storms close to each other may be changing some attitudes and perhaps the willingness of people to consider buyouts. “There should be enough evidence now from these two major floods that certain parts of the state are more vulnerable than others. We can identify those areas and begin to target buyouts strategically to the places where you get the biggest bang for the buck.”

It’s a situation like what happened after the sequence of Hurricane Fran and Hurricane Floyd, in 1996 and 1999, respectively.

“There were some buyouts after Fran, but not everyone was convinced. They said, ‘Well that’s a once-in-a-lifetime storm, that’s never going to happen again,’” Salvesen said. “And then Floyd happened a few years later, and all of the sudden people were lining up to get buyouts.”

Reading accounts of the recent storm, especially stories of people who also took a hit in Matthew, Salvesen said something similar could happen.

“One of the things that helps convince people to participate in a buyout is a subsequent flood, but we shouldn’t have to wait for that,” he said.

RALEIGH — Funding for continued work on oyster restoration, beach renourishment and a plan for a private-public partnership to purchase a hopper dredge dedicated to keeping Oregon Inlet open are among the top coastal items in this year’s budget, legislators say.

Rep. Pat McElraft, R-Carteret, said she and other appropriation subcommittee chairs finished their work late last week, sending it on to the main budget writers for each chamber with a “wish list” of priorities should additional funds become available.

That list includes additional funding to finish work on oyster sanctuaries, said McElraft, who is co-chair of the Agriculture and Natural and Economic Resources subcommittee.

She said she also expects about $5 million in the budget for the state’s new storm damage mitigation fund to assist with beach renourishment. Other coastal items are focused on aquaculture.

“We were able to get in the crab pots (cleanup), some other oyster funding and some aquaculture funding for Carteret Community,” she said.

Fast Track for plan

Rep. Chuck McGrady, R-Henderson, one of the main budget writers for the House, said he and his budget co-chairs in both chambers have sent their work to House and Senate leaders to work through remaining options.

“The House and Senate co-chairs have been meeting now for several weeks. We are done with our work and it’s now with the two corner offices,” he said in an interview Tuesday with Coastal Review Online.

McGrady declined to predict when the bill would emerge, but said he expects it to happen fairly quickly. Appropriations chairs announced Wednesday that members should be ready to review the budget plan early next week.

McGrady said one decision yet to be made is whether to include some or part of a bill filed last week to address GenX and emerging contaminant issues in the budget bill.

Identical bills were filed late last week addressing more than $3 million in GenX-related costs at the Department of Environmental Quality and Department of Health and Human Services and appropriating $8 million to the North Carolina Policy Collaboratory at University of North Carolina Chapel Hill to set a statewide testing and monitoring system for emerging contaminants like GenX.

He said the options being considered are whether to continue with a separate bill, put the GenX-related appropriations in the budget and spell out how they will be used in separate legislation, or include GenX legislation wholly in the budget as a special provision.

While the document may change some, McGrady said as it stands, this year’s budget has far fewer special provisions.

“I wanted to live to see a budget that didn’t have a lot of policy in it and at this point it doesn’t,” McGrady said.

With the 2018 budget adjustment bill on track for introduction any day now, this year legislative leaders could at last make good on the biennial promise of short session.

But the fast track process being used to develop the plan is drawing criticism for being far more opaque than usual.

The General Assembly produces a budget plan every two years with varying degrees of modification coming in the second year during the legislature’s short session.

Typically, that adjustment process moves through each chamber’s appropriations committees in a similar fashion as the first year of the process. The result are two separate budget bills that are then worked out by a conference committee.

This year, however, there aren’t separate bills coming from each chamber and House and Senate leaders appear to be moving quickly into the closed door conference portion of negotiations. They announced that the budget would be put into a new conference report for Senate Bill 99, an auto insurance bill that was passed by both chambers last year, but with differences that were never reconciled. New House and Senate conferees were named this week for the bill.

On Wednesday, Democrats blasted the idea that the budget could be taken up as a conference bill, which would mean that no amendments could be offered and passage would require only a single up or down vote in each chamber.

“What’s disappointing is that I really thought more folks had respect for the institution of the House and the process,” House Minority leader Darren Jackson, R-Wake, said in a tweet Wednesday night.

McGrady acknowledged that the process is less open, but said what was gained was less grandstanding and more collaboration between House and Senate negotiators.

“This process that we used, while it may be not real transparent, has been very efficient,” he said. “For the first time in my time as a House negotiator, I just haven’t seen the games that are usually played between House and Senate members.”

Dredging and Deed Stamps

In both dollars and tonnage, a new hopper dredge that will be dedicated to Oregon Inlet represents the largest item on the list for the coast in the budget.

McElraft said she was not convinced at first that the state should be getting into the dredging business but that there is now a workable plan for a public-private partnership between the state, Dare County and an as-yet-unnamed private dredging firm for the state to finance half of the cost of a new dredge and then recoup the funds through lower costs for dredging projects.

Dare officials signed off on the plan earlier this month.

McElraft said the money would likely come out of the state’s Shallow Draft Navigation Channel and Lake Dredging Fund and the provision requires the new dredge, which has an estimated total price tag of $30 million, to be used only for work in North Carolina waters. The state’s share would be roughly $15 million.

Its main mission would be keeping Oregon Inlet open, she said, but would also be available for other inlet dredging work.

Rep. John Torbett, R-Gaston, chair of the House’s appropriations subcommittee on transportation, said the new dredge is important.

Torbett, who told colleagues in a recent transportation committee meeting that the current system was woefully inadequate, said he would like to eventually see three dredges dedicated to the state’s southern, northern and middle coastal regions. “We have to keep our channels open. It’s mandatory for eastern North Carolina that we keep them open.”

McElraft was skeptical of that large of an expansion, saying that the new northern dredge would free up other dredges to open inlets elsewhere on the coast.

Last week, Sen. Bill Rabon, R-Brunswick, said he had not seen the Dare County plan yet, but would review it once finalized.

Rabon said he’s generally opposed to the state getting into the dredging business.

“Dredging is necessary, but I think there are people in the dredging business who can do it a lot better than the state can.”

McElraft said one item that won’t be taken up this year is a proposal she’s working on to rededicate revenue from the state’s deed stamp tax for conservation funds.

She said there wasn’t time and funds available to make the change, but that if re-elected she’ll bring it back up next year in the long session and, if not re-elected, she’ll make sure someone else does.

Revenue from the tax used to flow to the Parks and Recreation Trust Fund and the Clean Water Management Trust Fund, but that was ended by the legislature in 2013. McElraft said she wants to see a dedicated flow of revenue for the conservation funds.

“I think we have a lot of people on board with it, because it just makes sense to make that money go back to where it was supposed to have gone,” she said.

McGrady said he also supports the idea of going back to the previous use of the deed stamp tax, which now flows to the General Fund instead. Although he declined to share specific amounts ahead of the release of the budget McGrady said he is satisfied with the amounts proposed in this year’s plan.

OCRACOKE – Storm-driven tide crashing on to your waterfront yard is bad enough, but Hyde County Manager Bill Rich saw visions of doom when a 45-foot boat in Silver Lake headed straight toward his house.

“It looked like the Titanic was coming through my bedroom,” Rich recounted in an interview last week.

As fortune had it, Rich’s home was spared impact from one of numerous close encounters with unmoored orphaned vessels in the harbor, an increasing problem in the small resort community on the southern tip of the Outer Banks.

On Monday evening, the Hyde County Board of Commissioners unanimously passed an ordinance that prohibits abandonment of vessels in Silver Lake, in what Rich characterized as an important first step in addressing what has become a dangerous and ugly blight in the otherwise picturesque harbor.

“Every time there’s a wind of 30 mph or higher, something breaks loose, “ he said. “Usually it’s a derelict boat that no one’s been on for months.”

Under a 2015 state law, the county was given the authority to pass an ordinance that would consider a vessel to be abandoned if it was anchored for more than 30 days without permission within a six-month period. The definition also includes sunken vessels or those in danger of sinking, as well as boats that create a hazard to navigation or an immediate danger to other vessels.

Three other coastal counties – Dare, New Hanover and Brunswick – have also adopted similar ordinances. But abandoned vessels have become a costly and complex issue that nearly every waterfront community in North Carolina – and nationwide – is grappling to address.

In a report published in March 2017 by the U.S. Government Accountability Office, a survey of 28 coastal states found that 18 of those states reported more than 5,600 abandoned or derelict vessels between 2013 and 2016. Of those, only 3,000 had been removed.

North Carolina does not monitor the number of abandoned vessels in its waterways.

For Hyde County, Silver Lake Harbor is a popular destination for recreational sailors and boaters, especially in the summer. But in the last 15 years or so, Rich said, more people have been using their vessels – usually sailboats – to live on.  At the end of the season, or when the weather is dangerous, some people have moved away, leaving behind their empty boat anchored in the harbor.

The ordinance is not meant to keep people from living on their vessels, the county manager said. It is meant to discourage irresponsible ownership.

“What we’re not going to have is people using their boats as a motel and leaving them all winter long,” he said.

In just the last two months, six abandoned vessels broke free of their moorings, he said. One unfettered sailboat ended its journey at the pier in front of Ride the Wind Surf Shop, another landed by the Berkeley dock. Both of those vessels sunk. Another boat broke loose at the National Park Service docks.  After ensuring that they were unclaimed, the county retrieved each vessel, crushed them and hauled them away, at a cost to the county of $1,500 to $2,000 each.

In addition, Rich said, a fourth vessel was towed away from its resting spot at a private dock it damaged.  Two derelict vessels remain – one aground on private property, the other snagged on a mooring ball.

Eventually, Hyde plans to draft another ordinance more tailored to its needs and circumstances, and ask the legislature to approve it, Rich said.

Steve Wilson, chairman of the Ocracoke Planning Advisory Board and an island native, said that part of the problem with abandoned vessels is that their registrations are often outdated, making it difficult to track down the responsible party. Under the ordinance, the county follows state law that requires the abandoned vessel’s owner to be notified, when possible. Typically, an owner is determined through documentation and the identification number on the vessel’s hull. Under state law, the last registered owner is considered the owner, although it is rebuttable. Regardless of who removes and disposes of the abandoned vessel, or contracts for it, the person who removes the boat is responsible for collecting the associated fees.

The owner is responsible for all costs of removal, towing, storage, disposal and/or site restoration. And if the owner can’t be determined, the taxpayer ultimately foots the bill.

Some people who live on their boats don’t leave the harbor, Wilson said, so they don’t bother to renew their registrations. It’s also not uncommon for boats to be informally sold and resold without re-registering them.

“So you end up with a boat that has a confused ownership,” Wilson said. “It has no bill of sale, no current title, no current registration.”

Over the years, he said, there have been increasing numbers of  “boats that come here and never leave.” The result, he added, is the harbor at times has been cluttered with vagrant vessels without anchor lights, hindering the access for and safety of transient vessels that want to tie up for the night.

If a boat is docked or anchored and had not been underway, it is unlikely to be checked by law officers with the Coast Guard or the North Carolina Wildlife Resources Commission, which both have certain enforcement power over vessels, he said. And since no insurance is required for boats, documentation is easier to ignore.

Law enforcement personnel with the Wildlife Resources Commission did not respond to several requests seeking further information.

With the new ordinance, any county law enforcement officer or representative of any government agency with jurisdiction has enforcement power, including authorization to board a vessel.

“The bottom line is a lack of responsibility has created a problem for the village, for the transient boaters, for the property owners around the harbor,” Wilson said.

Silver Lake, the more evocative name for the Ocracoke harbor, is considered one of Ocracoke’s most vital resources, he added.

“These abandoned boats have become a detriment to our tourism economy as well as becoming a safety hazard,” Wilson said. “Ocracoke is lenient and tolerant, and we’re not looking to hurt people. We’re just looking for people to take their stuff when they leave.”

Learn More

• Read the ordinance

NORTH TOPSAIL BEACH – Land zoned within the town’s conservation district will remain preserved, unbuildable and prohibited from being rezoned.

The North Topsail Beach Board of Aldermen recently solidified their commitment to maintain the town’s nearly decade-old rule that prohibits the rezoning of land in the conservation district, or Con-D.

Aldermen unanimously adopted during their March 1 meeting a so-called consistency statement reiterating that rezoning Con-D lands is not consistent with the town’s land use plan and policies.

The move seemingly puts a halt to previous discussions about possibly changing the rule pertaining to conservation-designated lands.

Last August, the board tabled a decision on adopting proposed changes to the land use plan, one of which included striking the longstanding rule.

The town included the regulation in the adoption of its 2009 Coastal Area Management Act, or CAMA, land use plan, which prohibits the rezoning of a little more than 2,300 acres.

Commercial and residential development are not supported in conservation areas and only water-dependent uses may be permitted within the district.

Aldermen were asked to consider rezoning about 10,200 square feet of land from Con-D to rural agriculture, a move that would have allowed the property owners to build a single-family home on the land.

The planning board in a nearly split decision voted in January to deny the request.

Representatives for the property owners argued the portion of land requested to be rezoned was uplands, near a road and accessible to water and power infrastructure. They also said the portion of land had been erroneously zoned Con-D by the county, which designated zoning there before the town incorporated in 1990.

“These rules are in place for a reason and they’re working,” Alderman Tom Leonard said.

The property owners purchased the land within the last few years and were aware the land was zoned Con-D, he said, referring to the matter as a situation of “buyer beware.”

Members of the public who attended the March 1 meeting also spoke in favor of keeping the rule intact.

“We should never take any property off of Con-D,” said Sue Tuman, the wife of Mayor Dan Tuman. “Nothing comes off of Con-D in our town.”

Alderman Richard Peters said he considered Con-D lands “sacred.”

Dan Tuman, who was elected mayor last fall, has been a vocal supporter of the Con-D rule.

He spoke at the board meeting last August, urging the board to leave the rule prohibiting conservation-zoned lands intact.

Part of his argument was that the town needs to show a commitment to protecting conservation areas in light of North Topsail Beach’s long-drawn pursuit to convince the federal government to re-map the Coastal Barrier Resources Act, or CBRA, designation that encompasses some 70 percent of the town.

For years the town has been pressing the U.S. Fish and Wildlife Service, or FWS, the regulatory agency that mapped out and established CBRA zones in the early 1980s, to remove populated areas of the town from the zone.

The town has garnered the supported of U.S. Rep. Walter B. Jones, R-N.C., who, on Dec. 20, 2017, reintroduced a bill seeking to revise CBRA boundaries within the town.

H.R. 4692 specifically asks that lots within Unit L06 in North Topsail Beach serviced by infrastructure along N.C. 210 and New River Inlet Road “as of the date of enactment of” of CBRA on Oct. 18, 1982, be excluded.

The proposed bill was referred in early January to the House subcommittee on water, power and oceans.

Jones’ bill is similar to one introduced Aug. 3, 2017, by Sen. Thom Tillis and cosponsored by Sen. Richard Burr, both North Carolina Republicans. S. 1745 was referred to the committee on environment and public works, where it remains.

Gary Frazer, FWS assistant director for ecological services, addressed two bills pertaining to CBRA during a Feb. 27 hearing of that committee. Neither of those bills included North Topsail Beach.

“The Fish and Wildlife Service has not been invited by the Committee to testify on H.R. 4692; and, therefore the Service does not have a position on the legislation,” according to a FWS spokesperson.

During his April 8, 2014, testimony before a House subcommittee, Frazer addressed H.R. 187, a bill Jones introduced that is similar to his current proposed bill.

Frazer said that Unit L06, one of 68 units under review as part of a digital mapping pilot project, was one of the most developed units in the Coastal Barrier Resources System, or CBRS.

FWS’s revised map would remove nearly 80 structures and about 110 acres from Unit L06. The revised maps add about 1,500 acres, including 86 acres of uplands and a little more than 1,400 acres of associated aquatic habitat.

North Topsail Beach officials have long maintained that thousands of acres were erroneously placed with the CBRA unit because Onslow County had begun providing infrastructure – roads, water, sewer and power – to the north end of Topsail Island before CBRA was enacted.

Frazer testified in 2014 that the FWS had assessed the information provided by the county and the service’s own background records.

“Our review found that though there were some structures on the ground and a main trunk line of infrastructure that ran along the length of the unit in 1982, the area still met the CBRA’s criteria for an undeveloped coastal barrier when it was designated within the CBRS in 1982,” he said.

About 35 structures were on nearly 800 acres of uplands – about one structure per 23 acres of land above mean high tide, “well below the density threshold to be considered developed,” Frazer said.

“Therefore, the Service does not recommend removing Unit L06 from the CBRS or remapping the unit to remove the majority of the land currently in the unit from the CBRS,” he said.

Learn More

• Coastal Barrier Resources System

CAROLINA BEACH – A fence determined to be illegally encroaching on the public beach at a popular Carolina Beach park has been removed and the town has erected a new fence after a dispute with property owners that also included warnings and orders from the state.

The fence private property owners put up in February restricted public access to the beach, leading the town to temporarily close the park to vehicles.

The town this week installed poles and ropes in the park as part of an effort to relocate campsites and vehicular lanes, a process the town undertakes annually, according to a report in Port City Daily. New campsites and travel lanes are established in accordance with erosion on the beach and dune buildup.

A post and rope fence stretching nearly 2,000 feet on the eastern side of Freeman Park was taken down on Feb. 21. The rope was removed in the morning by the property owners whose private land is inside the park. Town employees pulled the posts after the town’s 2 p.m. deadline passed to remove them.

The fencing was uprooted two days after the North Carolina Division of Coastal Management’s Feb. 19 deadline ordering its removal.

The division issued notice of violation Feb. 15 to Don Formyduval, manager of DRDK LLC, which owns private land inside the park.

“We have no comment at this time,” Formyduval said when reached by telephone last week.

Division spokeswoman Sarah Young said in an email the division, “is continuing to investigate the situation and gather any other information to determine the facts and consistency with state guidelines for the coastal area, the Coastal Area Management Act and the Coastal Resources Commission’s rules.”

Carolina Beach officials had also, on Feb. 20, sent a notice of violation and order to Freeman Beach, LLC, a company that owns 170 acres south of the DRKD land.

Elizabethtown-based attorney Clifton Hester, who is listed as a registered agent of Freeman Beach, did not return a call for comment.

Citing safety concerns, town officials announced it was temporarily closing the park to vehicular traffic Feb. 14, the day the town was notified about the fencing, which blocked off freshly-placed sea oats.

The fence was installed north of the town’s property at the park’s entrance.

Carolina Beach Town Manager Michael Cramer told the Wilmington Star-News that Freeman Beach had the state’s permission to place slat-style sand fencing on the property to mitigate erosion. The town will bill the property owners for the work to remove the posts, he said.

Freeman Park is a popular area that draws fishermen, beachgoers, campers and crabbers. The announcement to close the park to vehicles prompted immediate criticism. The town sells annual and seasonal permits to motorists who prefer to drive into the park.

The town announced it was reopening the park to vehicular traffic Feb. 20 at 2 p.m., 24 hours before the deadline to remove the fence.

“Should Freeman Beach, LLC fail to do so, the Town reserves the right to remove the material,” the notice states.

State and town officials pointed out that the fencing violated North Carolina’s Coastal Area Management Act, or CAMA, regulations.

State rules allow sand fencing but specifies that fencing “shall not impede existing public access to the beach, recreational use of the beach, or emergency vehicle access.

Sand fencing must be installed no farther than a maximum distance of 10 feet waterward of the toe of the front dune.

The fence varied in distance from 50 feet to 150 feet waterward from the toe of the frontal dune, according to the state and town.

The roped-off area included more than 193,000 feet of dry sand beach, which is within a state-designated Area of Environmental Concern, or AEC.

CAMA regulations require a property owner to obtain a permit before commencing with any “development” in an AEC.

A letter Hester sent on behalf of Freeman Beach and other property owners may help explain why the fencing was installed.

In December 2016 letter, he stated that sand dunes were being damaged by people using campsites on the beach in the park.

According to Island Gazette, the Carolina Beach newspaper, Hester’s letter stated that the campgrounds “have caused an increasing amount of vehicular traffic on the privately-owned areas of the beach, leading to the destruction of some of the dunes as well as other areas which must be preserved in order to maintain the beauty and viability of this area for tourists.”

The town responded by installing additional posts and rope to attempt to keep vehicles off private property, according to the Gazette.

Learn More

• Freeman Park

WILMINGTON – Property owners who had more than 5 acres of wetlands filled on their land about two years ago are now seeking state and federal approval for the work that’s already been done.

The wetlands were filled in in 2015 as part of a project to revive an old grass airstrip on 111 acres in the small Carteret County community.

Property owners Greg and Emily Miller, of New Albany, Ohio, are now pursuing state and federal authorization, including an after-the-fact individual permit from the Army Corps of Engineers. The Millers could not be reached for comment.

The application is under review at the Corps’ Wilmington District, where it is being processed the same as applications requesting to fill wetlands before any work has been done, according to a Corps spokesperson.

That process includes a public comment period, which ended Dec. 8, a review of those statements, and an evaluation of direct, indirect and cumulative environmental impacts.

The Corps may issue penalties only for work that is not in compliance with a Department of the Army permit, Corps Wilmington District chief of public affairs officer Lisa Parker wrote in an email responding to questions.

The Environmental Protection Agency has the authority to assess penalties for unauthorized activities such as filling, dredging and grading in wetlands.

The agency “often requires individuals – companies and other entities – to pay monetary penalties for violating wetlands requirements,” according to the EPA website.

A spokeswoman with the EPA’s Atlanta, Georgia, office said the Corps has not referred the case in Atlantic to the agency.

As to what the property owners will be required to do if the Department of the Army permit application is denied, Parker wrote, “That decision will be made when the permit decision is finalized.”

The Wilmington District “does not receive many” after-the-fact individual permit applications, according to Parker. The number of after-the-fact permit applications the district has received this calendar year and in years past was not available by press time.

Corps officials in Wilmington were notified by the state that wetlands had been filled on the site, work that began in mid-2015 and included the construction of access roads, a taxiway, utility line and two ponds, according to the Corps’ Nov. 8 public notice.

Work on the land, which is adjacent to Nelson Bay, has been done to create an area for recreational aviation and “future periodic charitable use of military veterans and their families,” according to the notice.

A runway that was constructed on the land several decades ago was “built-up” with material excavated from the ponds. The applicants plan to maintain the ponds for irrigational and recreational purposes.

The N.C. Division of Water Resources, or DWR, has sent a letter to the property owners notifying them that they are required to apply for and cover the application fee for a 401 water quality certification, according to N.C. Division of Coastal Management spokeswoman Sarah Young. Referring to Section 401 of the Clean Water Act, the applicant is required to certify that any discharges from the site will comply with federal and state water quality standards.

“An application has not yet been received,” Young stated in an email.

The Corps will not make a final permit decision until DWR issues, denies or waives state certification.

The applicants will not be required to provide an Environmental Impact Statement, or EIS, according to a preliminary review by the Corps.

The review also indicates that there are no impacts to federally protected fish, wildlife or plant species or their critical habitat, no potential cultural or historic resources within the project site and no federally designated essential fish habitat on the property.

“Any additional or new information may change any of these preliminary findings,” the notice states.

DWR has not assessed a civil penalty for the site.

To mitigate affected wetlands, the property owners are proposing to create about 2.4 acres of wetlands on the site. The owners also proposed to create an additional 1.08 acres of littoral shelf emergent wetland, which is a small wetland usually located along a lake or pond shore, within one of the ponds on the property.

The Corps has not yet verified the exact amount of existing wetland affected and acreage proposed in the permit application.

Learn More

• Read the public notice

This Google Timelapse spanning 1984-2016 shows the naturally occurring western movement and eventual filling in of the small inlet that once separated Bird Island from the west end of Sunset Beach.

SUNSET BEACH – The Sunset Beach Town Council has agreed to ask a judge to place its lawsuit over a land ownership dispute on “inactive status” while it waits for the state to decide whether to buy the property.

The question now is whether the state will purchase the 35-acre tract at the west end of town and deem it conservation land, a fate both the town and the developers named in the lawsuit agreed upon last month through mediation.

Town council members unanimously voted Nov. 21 to accept a memorandum of agreement, which grants the developers the right to negotiate selling the land to the state.

A Brunswick County Civil Superior Court judge has to rule on the agreement before it may be carried out. The town and defendants listed in the lawsuit are scheduled to appear in court Dec. 8 to ask the judge to place the lawsuit on inactive status, “to give the State adequate time to acquire the funding to purchase all of the property,” according to the agreement.

Among the stipulations listed in the memorandum, only the developers may discuss selling the property with state officials unless one of the defendants specifically requests the town to communicate with the state.

The developers have initiated talks with the state, according to the memorandum, which reads, “Defendants informed the Town of its recent discussions with members of the North Carolina General Assembly about the possibility of the State of North Carolina (“State”) purchasing all of the Property for permanent and perpetual conservation …”

If the state buys the land, it has to agree to keep it free from development, walking trails, paths or structures of any kind.

The developers, not the town, would receive any profit from a sale.

“The impetus is now on the developers,” Sunset Beach Mayor Robert Forrester said. He added that the town agrees with “the intended result.”

The agreement comes after the town in the summer of 2016 filed a lawsuit against Sunset Beach West LLC, Sunset Beach & Twin Lakes Inc., and the co-executors of the estate of the late Edward Mannon “Ed” Gore Sr. Co-executors include Gore’s widow, Dinah Gore, who is listed as president of Sunset Beach & Twin Lakes Inc., and son, Gregory Gore, co-owner of Sunset Beach West LLC.

The lawsuit stopped short initial construction of an upscale development that would include 21 homes.

Developer Sammy Varnam, co-owner of Sunset Beach West LLC,  had already obtained federal and state permits, including a Coastal Area Management Act, or CAMA, major permit to build a bridge and docking facility on the property.

Varnam submitted a general warranty deed to the North Carolina Department of Environmental Quality in April 2014 when he applied for the CAMA major permit. A DEQ official stated then that it was not the department’s responsibility to settle a dispute over the validity of a deed.

Town officials and attorneys with the Southern Environmental Law Center initially raised questions in the fall of 2015 about whether the limited liability company owned all of the land, including the right-of-way to the property.

Varnam maintains that his company owns the land that stretches between where the pavement ends at West Main Street to the Bird Island Preserve.

He declined to comment for this article.

The debate goes back to 1987, when Ed Gore Sr., a well-known Sunset Beach developer and businessman, deeded a portion of the land to the town on the condition the town use it to build a public parking lot within three years. The parking lot was never built.

The town council in 2004 passed a resolution declaring that a parking lot would be too expensive because the town would have to either buy the last developed, oceanfront lot at the west end of West Main Street or build a bridge to access the land on which a parking lot could be paved. The town board decided then to turn the deed back over to the Gore family.

The town, however, never prepared the deed and the family did not request it. Meanwhile, the Gores continued to pay taxes on the land. Ed Gore died in July 2014.

In early 2106, the town council rescinded the 2004 vote.

“The ownership was the real issue,” Forrester said. “There’s no recognition as to who owns it. There’s been no definitive determination.”

Sunset Beach Town Administrator Susan Parker said she cannot discuss how the town and developers came to the agreement.

“The next move is for the other party to initiate discussions with the state or continue discussions with the state,” she said. “We didn’t put a timeline on it because we do not know how fast the state will or will not move.”

Longtime Sunset Beach resident Sue Weddle said that while she would like to see the state buy and preserve the property, she believes the town should receive any sales revenue.

“Ed Gore gifted that land to the town,” she said. “He had three years to take it back if he wanted to. He never did. That land is the property of the town. I am so sorry that the town and the lawyer agreed to something that they had no right to agree to. The money goes to we the citizens.”

Weddle is among a group of property owners in the town who’ve been opposed to the proposed Sunset Beach West development from the start.

The neighborhood would be built on land that was once Mad Inlet, a shallow channel that opened and closed over the centuries and dried up in the mid-1990s.

The inlet separated the west end of Sunset Beach from what is now the Bird Island Reserve.

In February 2014 the North Carolina Coastal Resources Commission removed it from the inlet hazard area designation.

The land remains in a federally designated Coastal Barrier Resources Act, or CBRA (pronounced “cobra”) zone. Building is allowed in CBRA zones, but, in an effort to discourage development in these areas, the government restricts federal subsidies, including flood insurance and Federal Emergency Management Agency aid.

If the judge denies the request to place the lawsuit on inactive status, the town and the defendants have agreed to file voluntary dismissals within 15 days of that ruling.

If the state declines to buy the land, the lawsuit could resume.

Learn More

• Read the memorandum of agreement

WASHINGTON – A summit recognizing the 20^th anniversary this year of the Fisheries Reform Act is set to revisit the creation of North Carolina’s first comprehensive fisheries management law.

Hosted by the nonprofit Outer Banks Catch, the summit is scheduled for 10 a.m. to 3 p.m. Wednesday, Sept. 27, at the Washington Civic Center in Beaufort County. Coffee and donuts will be served at 9:30 a.m. and a light lunch will be provided. Registration is required. The fee is $10.

With several recent environmental bills in the General Assembly that would dramatically affect fisheries in North Carolina, organizers are using the 20^th anniversary as an opportunity to put the Fisheries Reform Act in context, explain what was originally in the act, how the changes to the act have impacted fisheries and how the future may shape the FRA.

Gov. James B. Hunt Jr. signed the Fisheries Reform Act into law Aug. 14, 1997, wrapping up a three-year process of meetings, discussions and debates on the future of fisheries management in the state, according to the North Carolina of Department of Environmental Quality website.

Momentum began when the General Assembly put a moratorium on the sale of most state commercial fishing licenses effective July 1, 1994. A moratorium steering committee was appointed to study the state’s coastal fisheries management process and to recommend changes to improve the system, meeting from November 1994 to October 1996, the final report for the moratorium stated. The reform package was created by legislators, commercial and recreational fishermen, scientists, fisheries managers and conservationists, with the goal to ensure healthy stocks, the recovery of depleted stocks and the best use of fisheries resources, stated the DEQ website.

During the summit Wednesday, there will be a range of panelists with varied expertise and connections to the act, some of whom were on the moratorium committee.

Sandy Semans Ross, president of Outer Banks Catch, told Coastal Review Online that part of the nonprofit organization’s mission is to provide education about fisheries so that the public and legislators can make fact-based decisions.

“We have worked hard to bring in speakers who have firsthand knowledge of why and how the Fisheries Reform Act was written and implemented and the Emerging Issues panel of scientists will talk about topics that weren’t addressed at the time because they weren’t on anyone’s radar – a perfect example is rising water temperatures changing migration patterns,” she said. “We think we have put together a solid program that will interest the general public, legislators, environmentalists and both recreation and commercial fishermen.”

The first three panels will address the following questions:

• Why was fisheries reform needed?
• How were the recommendations that were the basis for the Fisheries Reform Act developed?
• How were the new laws implemented?

The last two panels of the day will focus on Emerging Issues, which will consider new areas of concern fisheries are facing, and Does the Fisheries Reform need to be tweaked, if so, why or why not?

North Carolina Coastal Federation Director Todd Miller is set to moderate the discussions. After each panel’s presentation, there will be a question and answer period. Questions will need to be submitted in writing.

Organizers provided the list of panelists that include but are not limited to the following:

• Bob Lucas: Selma attorney and recreational fisherman who chaired the Marine Fisheries Commission (MFC) and the Moratorium Steering Committee that hammered out the recommendations that were the basis of the Fisheries Reform Act.
• B.J. Copeland: Fisheries scientist and former Sea Grant executive director who served on the Moratorium Steering Committee and was a MFC member, now retired.
• Jimmy Johnson: MFC chairman during implementation who is a former commercial crab house owner and dealer and is now the Albemarle-Pamlico National Estuary Partnership’s coastal habitats coordinator for implementation of the Coastal Habitat Protection Plan mandated by the Fisheries Reform Act.
• Jess Hawkins: Marine biologist, Division of Marine Fisheries staff liaison for the MFC during creation and implementation of the Fisheries Reform Act, who later served as MFC member and is now owner and operator of Crystal Coast Ecotours.
• Susan West: Commercial fishing activist and writer who served on the Moratorium Steering Committee.
• Bob Lane: Commercial fisherman and owner of Capt. Bob’s Seafood restaurant in Hertford.
• Bill Gorham: Recreational fisherman, owner of Bowed Lures, South Atlantic Fisheries Management Council’s Cobia Sub Panel and Citizen Science Advisory Panel.
• Anne Deaton: Habitat assessment coordinator of the Division of Marine Fisheries Habitat Enhancement and Protection Section.
• Joel Fodrie: Fisheries ecologist and associate professor at the University of North Carolina Institute of Marine Sciences in Morehead City.
• Sara Mirabilo: Marine scientist and fisheries extension specialist with the North Carolina Sea Grant program.
• Wilson Laney: Senior biologist, Fisheries/Ecological Services at U.S. Fish and Wildlife Service Raleigh and adjunct assistant professor, N.C. State University’s Department of Applied Ecology.

In addition, North Carolina Sea Grant, North Carolina Division of Marine Fisheries and the Albemarle-Pamlico National Estuary Partnership will provide exhibits and information about water quality and habitat and commercial fishing gear.

West explained that she was appointed to the North Carolina Fisheries Moratorium Steering Committee. The committee reviewed the fisheries management process in North Carolina and issued the report with recommendations on ways management could be improved that formed the backbone of the FRA.

At the time of her appointment, she was president of a women-led group that advocated for commercial fishing families on Hatteras and Ocracoke islands.

West also played a major role as the principal investigator for the Fisheries Reform Act oral history project, “The 1997 NC Fisheries Reform Act: An Oral History Perspective.” In 2016, 13 oral history interviews were conducted with fishermen, scientists, environmental advocates and resource managers instrumental in crafting and implementing the act, according to the website. The oral history project was funded by North Carolina Sea Grant’s Community Collaborative Research Grants program, a partnership with the William R. Kenan Jr. Institute for Engineering, Technology and Science based at North Carolina State University. The interview recordings and transcriptions are available online on the Carolina Coastal Voices and the National Oceanic and Atmospheric Administration’s Voices from the Fisheries websites.

“I developed the proposal and assembled a team of strong collaborators with skills in coastal ecosystems management, oral history, and audio recording that executed the project, conducting oral history interviews and creating podcasts that tell the Fisheries Reform Act story,” West said.

West added that the Fisheries Reform Act created a transparent and orderly process to what had been a chaotic system for managing fisheries. That process was based on the idea that an inclusive, collaborative approach that supports the exchange of information between regulators, scientists, and stakeholders results in wise resource management.

“The oral history interviews support a deeper, more accurate picture of the past by augmenting information provided in public records.  The material in the interviews digs deep into why and how policy developed.  The lessons in those first-hand accounts are applicable today,” she said.

There are three podcasts in the series: “Part One: Troubled Waters” examines the state of fisheries in North Carolina prior to the moratorium on the sale of commercial fishing licenses; “Part Two: Fishing As Religion” explores the path from the moratorium to passage of the act; and “Part Three: Hindsight is 20/20” looks at the successes and shortcomings of the act.

Learn More

• Register for the summit
• Reeling In History: Documenting the 1997 Fisheries Reform Act
• The 1997 Fisheries Reform Act: An Oral History Perspective
• Overview of the Fisheries Reform Act
• Final Report of the Fisheries Moratorium Steering Committee 

GREENVILLE – A 90-day appeal or protest period began this week in some coastal counties for proposed new National Flood Insurance Program rate maps, which officials say provide greater accuracy for determining premiums despite no consideration given to the effects of sea-level rise.

The appeal period for preliminary floodplain mapping in Carteret, Pamlico and Dare counties began Wednesday and ends Nov. 13. For Onslow, Hyde, Jones, Craven, Tyrrell and Beaufort counties the period began Thursday and ends Nov. 14.

The appeal period is a time set aside for community officials and property owners to formally object to information shown on the preliminary Flood Insurance Rate Map, or FIRM. The FIRM panels depict new or revised base flood elevations, or the level to which floodwater is anticipated to rise, according to North Carolina Floodplain Mapping Program website.

Preliminary maps for the nine coastal counties were released June 30, 2016. The maps were based on a new coastal flood study that includes updates to the 1 percent annual chance storm surge values, as well as the expected erosion analysis and studies of overland wave effects these rare storms produce.

Brunswick, New Hanover and Pender counties preliminary flood hazard data were released Aug. 29, 2014, with the 90-day appeal period that began October 2015 and ended in January 2016. The effective date is anticipated to be later this year. Preliminary maps for Camden, Chowan, Currituck, Pasquotank and Perquimans counties were issued November 2015 with the 90-day appeal period having begun in July 2016. Those maps are to take effect next spring.

North Carolina partnered with the Federal Emergency Management Agency, or FEMA, to produce the updated FIRMs so that property owners could better understand their flood risk. Depending on the risk to a building, flood insurance may be required as a condition of obtaining a federally secured loan. Other times, purchasing flood insurance is considered a wise investment in preventing the financial devastation flooding brings, the website continued.

John Dorman is director of the North Carolina Floodplain Mapping Program, which began in 2000 after Hurricane Floyd took place in 1999. Dorman gave an update on the current status of the state’s coastal floodplain mapping during a July meeting of the Coastal Resources Commission in Greenville.

“As you know, flooding is probably the greatest hazard that we have in the state of North Carolina,” Dorman said.

Dorman said that every three and a half years his office determines which flood studies, whether for riverine or coastal areas across the state, need to be updated.

“There are about 40,000 stream miles that are looked at every three and a half years,” he added. They have collected information and used technology to collect the first-floor elevation of each of the 5.2 million buildings in the state in the 100-year flood zone. The 100-year flood is a flood event that has a 1 percent probability of occurring in any given year.

“We can subtract the difference of the first floor from the water level of the storm and tell you how much the damage will be on that building,” he said. “Based on damage curves, we calculate the financial cost to replace or repair that building.”

He said this was a significant benefit during hurricane Matthew. “Even before the end of the storm, we were able to tell FEMA what the financial cost was going to be for North Carolina.”

Dorman continued that FEMA utilizes the maps that his office maintains and updates. FEMA, along with flood determination companies and the insurance community, decides which buildings are required to buy federal insurance, based on federal requirements, adding that typically any federally backed mortgage requires insurance if it’s in the 100-year flood zone.

“Since we started the program, we’ve collected LiDAR (Light Detection and Ranging) topography across the state. We believe this has allowed mapping to be much greater accuracy,” he said.

“Now specifically on coastal,” Dorman said, “Back in 2006, we started looking at coastal models and studies that were out there. We felt at that time we need to update the coast. … We utilize all of FEMA’s coastal requirements and standards in doing these studies. We also utilize private sector licensed professionals, engineers and surveyors.”

He added that much of all the modeling undergoes significant review and evaluation and the most up-to-date coastal hydrodynamic process and methodology based FEMA’s latest models are used.

“The current maps that were out there prior to the work we’ve done were based on 1981,” he explained. “The concern of ours was that the data was significantly outdated, the topography was very coarse; our desire and what we felt like was our duty was to update the coastal areas.”

Dorman noted that the question about climate change had come up a number of times.

“Nothing of what we’ve done with base-flood elevations has anything to do with climate change or sea-level rise,” he said. “That has not been built into this, in fact, it should be noted that FEMA is prohibited at this point in time from actually incorporating climate change or sea-level rise.”

Dorman said the entire coastline should be restudied, and FEMA agreed. They provided funding to update the whole coastline, which was done so there were no breaks in the work, overlaps or duplication.

“So why did we do an update?” he asked. “The last study was based on 1981 and significant changes have occurred since then,” he reiterated. “We’ve had significant storms … and the last model that was used was not being maintained or accepted by FEMA. We could not update the coastal study with updated storm surge based on that existing model.”

Additionally, the model used from 1981 did not include wave setup, or the increase in water level cause by the onshore movement of water from breaking waves.

“So, it may bring in surf, but it did not look at the increased elevation of the water based on the inability for it to run off,” Dorman said.

The study also updated topography and bathymetry data, or the measurement of depth of water in oceans, seas or lakes.

So, where are we now? Dorman asked. After the 90-day appeal period is over, it’s believed that all the maps will be adopted and all the issues will be managed.

“By spring of 2018 those counties will be effective for insurance rating purposes. Those maps can be used right now by the community for properties with higher elevations,” he said.

Community Development Planner Randy Mundt also addressed the CRC. With the program since 2006, he has been responsible for working with communities to determine where they have needs for updates and, if updates are necessary, working through the process from start to finish.

Mundt said the big picture is that though we always hear of the 100-year flood map, he feels it’s a misnomer.

“I don’t like having to use it, but for people to quickly understand that it means it’s not something that happens on a regular basis. Technically it’s the 1 percent annual chance flood, which is a significant, extreme event,” he explained. “A better way to look at where you’ll see the 1 percent annual chance would be where you experience, in this case, we’re looking at modeling.”

Mundt added, “If you can remember one thing, the 1 percent annual chance storm is an exceeding rare significant event that we may not in our lifetime experience.”

Learn More

• View a slide show on the mapping updates

This story has been updated to clarify the description of the court ruling in the federal lawsuit involving Marlow Bostic. 

NORTH TOPSAIL BEACH – A bill to remove the coastal barrier zone boundary restricting federal aid to a large portion of North Topsail Beach is back on the table for congressional review.

Senate Bill 1745 would erase the federal Coastal Barrier Resources Act, or CBRA (pronounced “cobra”), designation that currently covers about 70 percent of the town.

The bill, introduced by U.S. Sen. Thom Tillis, R-N.C., has been referred to the Senate Committee on Environment and Public Works. U.S. Sen. Richard Burr, R-N.C., is the bill’s co-sponsor.

“This legislation would revise the Coastal Barrier Resources System to take out certain portions of North Topsail that were included when the system was created in 1982,” Tillis said in a statement to Coastal Review. “I look forward to working with Senator Burr to see that our coastal communities have the proper resources they need.”

If passed into law, the Secretary of the Interior would have up to 30 days after the bill is enacted to revise the CBRA map to omit properties “that are serviced by infrastructure” along N.C. 210 and New River Inlet Road.

The bill is a continuation of a more than 30-year push by the town to get the CBRA designation removed.

Congress passed CBRA in 1982 to discourage building on relatively undeveloped barrier islands by cutting off federal funding and financial assistance in hurricane-prone, biologically rich areas.

The U.S. Fish and Wildlife Service, which is responsible for designating and mapping CBRA units, determined that since the unincorporated north end of Topsail Island was largely undeveloped the land met the criteria to be placed within CBRA.

The agency designated more than 6,000 acres as CBRA lands.

Throughout the years, North Topsail Beach officials have steadfastly argued the town’s CBRA boundaries are erroneous because land in the zone was already under development and had a full complement of infrastructure, including roads, water, sewer and power before CBRA was enacted and prior to the town incorporating in 1990.

The late Marlow Bostic, the man responsible for much of the town’s original development and one of the most penalized builders in the state, filed a federal lawsuit to block the CBRA inclusion. A district court judge denied the request by Bostic and a handful of North Topsail property owners for a temporary restraining order and preliminary injunction, ruling that the CBRA designation was justified. The court of appeals upheld the district court’s ruling and dismissed the case.

The fish and wildlife service has maintained North Topsail Beach was accurately mapped.

Anyone who owns property within the CBRA unit cannot participate in the National Flood Insurance Program, or NFIP, or apply for a Veterans Affairs loan.

The town was recently moved from a Class 7 to a Class 5 in the NFIP Community Rating System, a voluntary incentive program that rewards communities for taking on higher standards in flood plain management.

The higher classification will save North Topsail Beach property owners with federal flood insurance an average of more than $400 annually in premiums.

North Topsail Beach is a little more than 11 miles long. Nearly 7 miles of the town’s beach does not qualify for federal storm reduction projects because it is in a CBRA zone.

The town wants 659 acres of developed land removed from CBRA and another 2,155 undeveloped acres re-designated as “otherwise protected areas,” or OPAs.

OPAs are designated by the fish and wildlife service as lands for wildlife refuges, sanctuaries, recreation or natural resource conservation areas. The only federal spending prohibited within OPAs if federal flood insurance.

The undeveloped land is primarily wetlands and currently zoned as conservation areas.

Proposed changes to the land use plan include striking a rule that prohibits the rezoning of conservation-designated lands. One of the concerns raised about the potential change is that it may hurt the town’s efforts to get the CBRA revision.

At the recommendation of former congressman turned lobbyist Mike McIntyre, a senior adviser and director of government relations for the Poyner Spruill law firm, North Topsail aldermen adopted a resolution Aug. 2 affirming the town’s commitment to urging the government to revise the CBRA map.

“I think that is a pretty good statement of what our motives are and what it would do for us,” said Carin Faulkner, the town’s assistant manager and clerk.

Calls to members of the town board were not returned by the time this article was published.

Tillis’ bill is not the first to be introduced to Congress.

U.S. Rep. Walter B. Jones, R-N.C., and former U.S. Sen. Kay Hagan, a Democrat, both introduced bills a few years ago to revise the CBRA designation in North Topsail Beach.

The bills did not move forward because the fish and wildlife service did not support the revisions.

Learn More

• Coastal Barrier Resources System
• Senate Bill 1745 Text

RALEIGH – Mitch Gillespie, a former legislator who is now a senior adviser to speaker of the state House, and University of North Carolina School of Government water law expert Richard Whisnant are among a wave of new appointees starting work this month on key environmental policy boards.

Gillespie is a former McDowell County legislator who chaired the House Environment Committee and served as assistant secretary of the Department of Environment and Natural Resources, now the Department of Environmental Quality, from 2013 to 2015. He is House Speaker Tim Moore’s main adviser on environment and energy policy.

He most recently helped broker a rewrite of energy policy between power companies, environmental groups and the solar industry.

Gillespie will remain on the Speaker’s staff, according to Joseph Kyzer, Moore’s Communication Director. He was cleared to do so in a July 11 letter to the Speaker from the office of the State Board of Elections and Ethics Enforcement, which reviews candidates for all state boards and commissions.

Gillespie is one of dozens of appointees named by Moore and Senate leader Phil Berger at the end of the legislative session. They join a handful of appointees made earlier this year by Gov. Roy Cooper.

Legislative Appointees

Environmental Management Commission

Steve Keen, a former Wayne County commissioner who served previously on the Environmental Management Commission, was appointed by Moore. Keen, who owns a yacht-transport company and formerly owned a Beaufort-based charter and towing company, is also a member of the Global Transpark Authority.

Charles Carter, a Wake County attorney and former assistant general counsel of the Environmental Protection Agency, was re-appointed by Berger.

The Environmental Management Commission is responsible for adopting rules for the protection, preservation and enhancement of the state’s air and water resources.

Coastal Resources Commission

Wilmington developer Robert High was appointed for a term expiring on June 30, 2018, to fill the unexpired term of John Snipes II. In addition, the term of current Coastal Resources Commission member Larry Baldwin of Carteret County was corrected, expiring in 2019 instead of 2018 under a previous bill.

The Coastal Resources Commission sets policies for the state’s Coastal Management Program and adopts rules for both the Coastal Area Management Act and the Dredge and Fill Act. The commission designates areas of environmental concern, adopts rules and policies for coastal development within those areas and certifies local land-use plans.

Clean Water Management Trust Fund

Former Henderson County commissioner Renee Kumor was appointed by Moore to a term expiring on July 1, 2020; and Wilmington builder Robin Hackney of New Hanover County was appointed by Berger to a term expiring June 30, 2020.

Berger also named writer and commentator Troy Kickler of Wake County to fill the unexpired term of Johnny Martin. Kickler’s term runs until June 30, 2018.

The Clean Water Management Trust Fund provides grants to conservation nonprofits, local governments and state agencies for the protection of surface waters.

Governor’s Appointees

Cooper’s appointees are the governor’s first round since assuming office in January, although in some cases he did take advantage of the governor’s option to rename the chairs of boards and commissions from existing members.

In March, Cooper named former Nags Head Mayor Renee Cahoon chair of the Coastal Resources Commission, replacing Frank Gorham, who served as chair under former Gov. Pat McCrory. Gorham resigned in March.

In January, Cooper also named JD Solomon to head up the Environmental Management Commission after chair Steve Rowland resigned to move out of state.

The governor’s first round of appointments to both the Coastal Resources Commission and the Clean Water Management Trust Fund board of trustees is not due until next year, but the governor named several to the 15-member Environmental Management Commission.

Whisnant, a professor at the School of Government who focuses on environmental protection and natural resource management served at DENR, now DEQ, as general counsel and fills the seat on the Environmental Management Commission set aside for an expert in estuarine and marine sciences.

Also appointed to the Environmental Management Commission by Cooper were Newport physician Suzanne Lazorick, a pediatrician with the Brody School of Medicine at East Carolina University; former EPA regional administrator Stan Meiburg, currently director of graduate studies at the Center for Energy, Environment and Sustainability at Wake Forest University; and Marion Deerhake, an environmental scientist and air pollution expert at RTI International.

Learn More

• Environmental Management Commission
• Coastal Resources Commission
• Clean Water Management Trust Fund

N.C. COAST – Abandoned boats and finding ways to deal with them are not new issues for eastern North Carolina. Locating owners or funding the removal of an abandoned boat are just some of the hurdles involved in cleaning up a vessel left to rot where it sits.

“We don’t really have adequate laws (in North Carolina) that address this and there’s no teeth in much of anything to deal with (abandoned boats),” said Judy Hills, executive director of the Eastern Carolina Council of Governments.

And except for a few limited instances, the federal government doesn’t offer much assistance.

A report from the U.S. Government Accountability Office published in March found that federal agencies face some of the same challenges as local and state governments when it comes to handling abandoned and derelict vessels, also referred to ADVs: there’s simply not enough money and not enough regulations for cleaning up such vessels.

There are some cases in which federal agencies like the Coast Guard, the Corps of Engineers, the Federal Emergency Management Agency or others will get involved with an abandoned or derelict vessel. But those cases are limited to vessels in federally maintained waterways, containing potential pollutants or that were grounded or considered debris due to a major storm event.

According to the study, those agencies felt they had little or no responsibility to be involved in vessel cleanup outside the parameters laid out in federal statute.

“Agencies reported they generally did not have funding to support actions beyond responding to ADVs posing navigation hazards in federally-maintained waterways and pollution and public health threats, nor were they required to do so by federal law or agency policy,” the report states.

Many states are taking it upon themselves to clean up abandoned boats. The study surveyed 28 coastal states, and 18 of those reported identifying more than 5,600 abandoned or derelict vessels between 2013 and 2016 – 88 percent being recreational vessels under 40 feet in length. Of the 5,600 abandoned vessels identified, just more than 3,000 were removed.

While North Carolina responded to the survey, it was not one of the 18 states to identify or remove abandoned vessels. It reported that it did not know the number of ADVs during the three-year time period.

Hills, a recreational boater who has championed an abandoned boat monitoring program for the state in years past, called the issue complex.

Some of the complexities include locating owners when all identifiers have been removed from the vessel, private property rights, insurance and more – let alone keeping track of abandoned boats, she said.

“Other states have a more active monitoring program, like Florida, where it’s kind of like an abandoned car, they’ll go put a sticker on (the abandoned boat),” she said. “They’ll mark it and put it on a GIS mapping system and go back and check on them periodically and send notices to people about them. And we just don’t have anything like that here in North Carolina.”

In North Carolina, the Wildlife Resources Commission handles the titling and registering of boats, as well as the state’s Boating and Water Safety provisions for abandoned vessels, according to WRC Land and Water Access Section Chief Brian McRae.

He explained that though state laws don’t require the removal of an abandoned or derelict boat, there is procedure for a person who finds such a boat to apply for ownership of the vessel.

“The Wildlife Resources Commission’s procedures … allow a person who finds an abandoned vessel to become the registered and titled owner, provided the previous owner(s) cannot be located and have not reported the vessel missing or stolen,” McRae said in an email.

“This issue becomes a little more complicated if the abandoned vessel is hindering the launching or retrieving of vessels at a WRC Boat Access Area or posing a danger at a WRC Boat Access Area. In these circumstances, we will conduct a title search but eventually take on the salvage and remove costs to get it taken care of.”

McRae said while there are criminal charges that can be filed for abandoning a vessel, the state has no mechanism to force an individual to remove a vessel.

“The only reference to removal requirements for abandoned vessels in North Carolina in under N.C. Gen. Stat. § 143-355(b)(5). It states that the Department of Environment and Natural Resources (now known as the Department of Environmental Quality) is required to cooperate with the U.S. Army Corps of Engineers in removing ‘any wrecked, sunken or abandoned vessel or unauthorized obstructions and encroachments in public harbors, channels, waterways and tidewaters of the state,’” he said.

Hills said she tried in the past to get a monitoring program for the state with the commission but was unsuccessful.

“We showed (the commission) what Florida is doing as far as monitoring and tagging (abandoned boats). We made a pitch and basically the bottom line (from the commission) is, ‘We don’t have the resources,’” Hills said.

“I’m not saying there wasn’t an interest there – they understand there is a problem,” she continued. “But my impression was: ‘Unless somebody dictates that to (the commission), we really don’t want to have any responsibility.’ And you can’t blame them. They don’t have unlimited resources and it’s a tremendously complex problem.”

That can leave local governments in the lurch when it comes to cleaning up scenic waterfronts and harbors.

“(Local governments) could expend the funds (for removal) if they so desired, but if you do it for one, you have to do it for everybody,” Hills said. “So it’s a really hard decision, and there really isn’t any money for it.”

Some local governments have taken matters into their own hands. Kyle Garner, the planning and inspections director for Beaufort, said the town has an ordinance outlining the procedure to follow should a boat need to be removed from Taylor’s Creek.

The procedure includes everything from attempting to locate the boat’s owner, to posting public notice that the boat will be removed, to working with a local marine towing company for the removal.

“We want to make sure we do things the right way and the ultimate goal is abatement or getting the areas cleaned up and sometimes it takes time,” Garner said. “But it’s a worthy endeavor and when it’s done it’s hopefully finished and you’ve met your goal.”

Garner said town officials recently met with representatives of the Corps of Engineers to discuss possible efforts on Beaufort’s part to remove sunken boats in Town Creek.

Though Town Creek is a federal harbor of refuge, it is not a federally maintained waterway, so the Corps is not required or funded to remove vessels there.

Dealing with and cleaning up abandoned and derelict vessels is an ongoing challenge for many coastal areas, Garner said.

“It’s going to be a challenge not only for us, but for coastal areas throughout the country. And we’re not the only community that has some of these vessels in just deplorable shape,” Garner said. “It’s a shame they’ve gotten there, but (cleaning them up is) something we have to do to help protect the environment of our areas and our waterways here – and not only what I would consider the fragile environment but also the visual environment, the aesthetic environment.”

Learn More

• Read the Report

RALEIGH – When European settlers first arrived in North Carolina’s sounds, historical accounts indicate that the water was so clear a dropped coin could be seen falling to the bottom of the sound. The waters once teemed with so many oysters that their reefs were a navigational hazard.

These days, the water looks murkier, and regular shellfish harvesting closures illustrate the impact humans have made on the health of the state’s estuarine systems.

A conference held last week sought to answer the question: could restoring these habitats and improving water quality be an economic boon to North Carolina? Other states may have already made the connection.

Close to 200 North Carolina business leaders, coastal business owners, local and out-of-state leaders and state agency officials met here March 22-23 at an economic development summit to discuss ways to boost the state’s economy through environmental improvement. The group looked to states like Maryland and Virginia to find answers on how to use and protect the North Carolina’s coast for economic prosperity.

The North Carolina Coastal Federation hosted the Sound Economic Development Summit at the Museum of Natural Sciences in Raleigh. Speakers and panelists discussed the potential for oyster aquaculture, habitat restoration and stormwater management to create jobs and bring money into coastal economies.

Maryland and Virginia were discussed as models for stormwater management and oyster restoration, respectively, with many speakers saying that North Carolina had the potential to surpass the other states in aquaculture and restoration.

Oyster aquaculture and strong stormwater practices discussed at the conference have a shared goal: healthy and clean sound waters. A single oyster can clean as much as 50 gallons of water a day, and good stormwater management can prevent unhealthy bacteria, sediments and chemicals from reaching the sound. Protecting water quality, many attendees argued, could also be key in promoting coastal economies.

“That’s the great thing about oysters and coastal restoration,” said state Environmental Secretary Michael Regan as he addressed the crowd in a welcoming speech, “there’s a little bit of something here for everyone.”

The argument did not fall on deaf ears. In early March, two coastal legislators, Sen. Bill Cook, R-Beaufort, who spoke at the summit in support of aquaculture, and Sen. Norman Sanderson, R-Carteret, sponsored a joint resolution asking the Army Corps of Engineers to allow for more shellfish cultivation and leasing in the state’s waters.

Oysters as Assets

Day one of the conference focused on the potential impact oysters could have on the state’s economy, which many in attendance said could be massive.

There were discussions of North Carolina potentially becoming the “Napa Valley” of oysters, a term coined by author of “The Essential Oyster,” Rowan Jacobsen, who was also in attendance. The term “Silicon Valley” of oysters was also thrown in by Tom Looney, a moderator at the event and a board member of the Economic Development Partnership of North Carolina. The term is a reference to educational and institutional support available from the state’s universities.

Looney said oysters can provide viable financial returns, jobs and clean water, making the mollusk the “ultimate clean tech.”

North Carolina is in a unique position to take advantage of such a resource.

The state is home to the Albemarle-Pamlico Sound Estuary, with more than 12,000 miles of estuarine coastline. The water body ranks as the second biggest estuarine system in the continental United States.

Despite its potential, North Carolina’s aquaculture industry is not as strong as Virginia’s in the Chesapeake Bay. A study from North Carolina Sea Grant, a North Carolina State University coastal research institute, found that the difference was in the millions. In 2012, Virginia’s oyster aquaculture operations generated more than $9.5 million in revenue, while North Carolina’s made a little less than $600,000.

The reason for Virginia’s aquaculture success may lie in the involvement of its government.

“Every agency of government got behind it and supported it with a comprehensive plan,” Looney said.

Through the 1980s and 1990s, Virginia put a focus on breeding oysters for aquaculture that were disease-resistant and hardy. Eventually, the popular triploid oyster became a mainstream option that made the state millions.

Triploid oysters make up about 90 percent of Virginia’s aquaculture harvest. It has three sets of chromosomes, making it sterile.  Panelist Mark Luckenbach, Associate Dean of Research and Advisory Services at the Virginia Institute of Marine Science, said the triploid’s unique genetic makeup creates a tasty summer oyster.

Virginia also fostered, and still maintains, a robust water quality and disease-diagnostics program, as well as educational programs. The state also has a heavy focus on marketing its oysters, keeping prices high.

“The way they’ve done that is through an active export business and a great, great marketing campaign,” Looney said.

An idea reiterated throughout the summit by North Carolina officials was to get inspired by Virginia’s oyster trails, where visitors can drive through the Virginia coastline sampling oysters and brews.

North Carolina has also made strides in aquaculture. For example, Carteret County Community College has an aquaculture program for people interested in learning how to grow oysters.

The federation used the event to promote its 50 Million Oyster Initiative, a plan to create 50 acres of oyster sanctuary in North Carolina by 2020. According to the federation, the plan will create economic opportunities for coastal economies.

“It provides jobs for contractors, fishermen, construction workers, truck drivers and many others during the construction of the reefs,” the federation’s description of the project says.

Despite optimism showcased at the summit, the state’s aquaculture abilities have been limited due to barriers such as uncertain seed availability and financial support for research.

Virginia’s oysters have many of the same vulnerabilities as North Carolina’s. Other limiting factors for oyster aquaculture production include a lack of cultch, or material for baby oyster spat to cling to, poor water quality, a lack of hatcheries, disease and overharvesting.

Looney said North Carolina’s small aquaculture industry can make sure to protect resources as the industry grows.

In North Carolina, only a little more than 2,000 acres have been leased to aquaculture, while Virginia has leased more than 120,000 acres.

“The benefit we have here (in North Carolina), we’re starting from a very small base, and that’s why we have the opportunity to really protect the public trust,” Looney said.

Managing Stormwater to Create Opportunities

An important aspect to aquaculture is a healthy estuarine ecosystem. Good water quality is put at risk when contaminated water moves off of land after a storm. Waters with unusually high levels of certain bacteria are shut down to shellfish harvesting to protect consumers from potential illnesses.

Prince George’s County in Maryland, situated towards the eastern side of Washington, D.C., was cited as a success story in stormwater management at the summit. When local waterways leading out to the Chesapeake Bay began to feel the effects of polluted runoff and the United States Environmental Protection Agency issued a mandate to clean up the waters, the county took action by creating a community-based public private partnership, the Clean Water Partnership, in 2015.

David Washington, director of program operations with the $100 million partnership, said that the county partnered with Corvias Solutions, a firm that specializes in helping foster sustainable communities.

Together, the group and the local government have set out to achieve the EPA’s mandate to remove 15,000 impervious acres by 2025. In the process of doing so, Washington said the investment focused on creating jobs and opportunities for local residents.

As part of the project, a goal was set to employ local, small and minority-owned businesses to do 30-40 percent of the work.

“We’ve exceeded that. We’re at 76 percent,” Washington said.

In addition, the project also promotes education and skills by creating a mentor-protégé program and investing $460,000 in student internships.

The first phase of the project is underway, with plans to deliver up to 2,000 impervious acres by spring of 2018.

Hunter Freeman, a Senior Project Engineer at WithersRavenel, a Cary-based civil and environmental engineering firm, said during a panel that he sees the beginnings of a similar approach to stormwater in North Carolina.

“I think we’re at the initial stages of public-private partnerships here, where consultants, researchers, universities, regulators, nonprofits are all now coming together,” he said. “I think what we need to focus on is an additional investment in that framework to get it to the level that Maryland has seen.”

The federation, with partners and individuals, created a plan to use coastal restoration discussed at the summit to develop coastal economies. That plan was presented during a panel at the summit.

Investing and creating opportunities in environmental protection may be more important now than ever. Jason Gray, a senior fellow at the North Carolina Rural Center, said during a panel that coastal communities may face their toughest challenges ahead.

“Our coastal economy is going to be under a lot of pressure in coming years,” he said, “and I haven’t even touched climate change.”

Learn More

• Learn more about the summit
• Read the Strategic Plan for Creating a Robust Coastal Economy with Coastal Restoration
• Prince George’s County Clean Water Partnership
• Read Senate Joint Resolution 205

Shrimpers in North Carolina had a great year in 2016, likely because of unseasonably warm inshore waters into the winter. But a proposed tightening of shrimp trawling regulations could dash hopes of future such windfalls.

On Tuesday, the North Carolina Marine Fisheries Commission will hear public comments about a petition presented last month that would put more limits on shrimp trawling in state waters. The petitioner North Carolina Wildlife Federation, a nonprofit conservation group, says the restrictions are necessary to protect fish nurseries and juvenile fish species – in particular, weakfish, spot and croaker – and reduce unintended catch of finfish. But fishermen say it would devastate the commercial shrimp industry, the second most lucrative fishery in the state, behind blue crab.

Davis said that the amount of shrimp that could be caught would go down drastically and hurt every aspect of the commercial fishing industry.

“When the fish houses go out of business,” he said, “you’ve got nobody to sell to.”

Jerry Schill, president of the North Carolina Fisheries Association, a nonprofit commercial fishing group, said it’s part of a misleading campaign by some recreational fishing and environmental groups to ban all commercial gill nets and trawling.

“This is not a shrimping meeting,” he said of next week’s meeting in New Bern. “This is when you draw the line in the sand. It’s our Popeye moment.”

What’s Been Proposed

The rule-making petition proposes to expand protected fish nursery areas to all the state’s estuarine and ocean waters, cut trawling to three days a week, limit tow time to 45 minutes, decrease the size of trawl nets and eliminate nighttime shrimping.

Shrimp trawling is currently closed to inshore waters on weekends, but is open all week in the ocean within state waters 3 miles from shore. Trawling is also permitted at night.

As submitted on Nov. 2 to the Fisheries Commission, the proposed rules would designate all currently undesignated coastal fishing waters as special secondary nursery areas, require shrimp be a certain size before opening the shrimp season and define gear used in the nursery areas.

Dare and Hyde counties have passed resolutions stating their opposition to the proposed rules, and the Ocracoke Island fishing community has started a petition against the rule changes.

Tim Gestwicki, chief executive officer of the North Carolina Wildlife Federation, denies that the intent of proposal is to stop shrimp trawling or put fishermen out of business. On the contrary, he said, it is part of its ongoing “Sound Solutions” campaign to reform marine resource conservation with “holistic” habitat protection practices.

“It’s a balanced, fair approach and still affords shrimp trawling,” Gestwicki said. “It simply limits the gear and the way the gear is used.”

According to the Wildlife Federation website, the Sound Solutions effort is based on the belief that the resources are public trusts that need protection to benefit all citizens into the future.

“We recognize the importance of both commercial and recreational fishing, but today’s practices are unsustainable,” according to the site. “Without stewardship, NC’s marine resources will deplete until there’s nothing left for anyone.”

Part of the proposed reforms is decreasing the maximum head rope from 220 feet to 90 feet, which limits the net size.  Trawlers currently are hauling “a football field of nets” behind them, Gestwicki said.

One of the important goals of the petition, he said, is reducing bycatch of fish – much of them juveniles – captured along with the shrimp. The proposal would also put an 8-inch limit on spot and a 10-inch limit on American croaker. The petition says that the two species, along with weakfish, are among species whose status is “depleted and declining.” Expansion of the protected nursery area would allow more fish to survive and reproduce.

The petition was deemed complete on Jan. 5, said division spokeswoman Patricia Smith. That means that the commission has decided that the petition has the necessary information required for it to move forward for further consideration.

A meeting of five advisory committees for the Marine Fisheries Commission will meet on Jan. 17 at the New Bern Riverfront Convention Center at 12:30 p.m.  Public comments will be taken on the shrimp trawling petition.

Family Businesses

Shrimp is the most popular seafood in the country, and is not surprisingly a favorite seafood in North Carolina. The state heavily promotes fresh shrimp’s superior sweet and salty taste in its NC Catch campaign, prompting consumers to demand wild-caught shrimp rather than settling for imported farmed shrimp.

Although most of the nation’s shrimp harvest is caught in the Gulf of Mexico, it is a huge fishery in North Carolina. In 2015, more than 9 million pounds of shrimp were landed in the state. Most shrimpers are small operators, often family businesses, who shrimp when the opportunity presents itself.

David Sneed, executive director of North Carolina Coastal Conservation Association, a nonprofit recreational saltwater fishing advocacy group. said that “we don’t buy” that the proposed rules, if approved, would reduce the availability of fresh shrimp for consumers, or that they would destroy the livelihoods of the fishing families.

“First and foremost, if we can keep the trawlers off the designated nursery areas and give the juvenile fish a chance to grow, that’s going to benefit everybody,” he said. “We’re not looking at a complete closure.”

Addressing the frequent charge from watermen, Sneed denied that the association is trying to eliminate commercial fishing, trawling and gill nets. Rather, it wants stricter net rules similar to what other states have implemented successfully.

“Our goal is to raise the level of fish populations in North Carolina,” he said, “where it benefits both commercial and recreational fishing.”

Bycatch and Enforcement

According to the petition, in 2014 about 15 million pounds of juvenile spot, Atlantic croaker, and weakfish were caught and discarded in North Carolina waters. But Jess Hawkins, a retired fisheries biologist, says other factors such as climate change, predation and pollution also contribute to decreased populations of some species. There is no indication that shrimp has been overfished, he added, although their numbers can be affected by environmental conditions, including storms, water temperatures and salinity.

North Carolina is the only state on the East Coast that still allows inshore shrimp trawling, but Hawkins said its vast estuarine system is different than any other state. Pamlico Sound has the most shrimp, but 1 million acres of North Carolina waters are closed to trawling.

“We are a haven for small fish, just because of the way our estuaries are set up,” Hawkins said. “They’re very shallow.”

Hawkins has done some consulting work for the North Carolina Fisheries Association.

Trawls pull triangular nets behind a boat to catch shrimp on the bottom. Small tri-nets behind the trawl show what they’re catching and are typically checked every 15 minutes or so. Bycatch is still an issue, Hawkins said, but North Carolina fishermen have worked closely with fishery managers to develop mechanisms to keep out untargeted species.

“They want to catch shrimp,” he said. “They don’t want to catch those fish.”

When the nets are brought up, the fish, whether alive or dead, are culled out and thrown overboard. Mortality varies by species and water temperature.

Hawkins, who had worked for the division for 30 years and served on the commission for two years, says that North Carolina was the first state to use finfish excluders on trawl nets, which reduced bycatch 40 percent to 70 percent. Another type of excluder was developed last year that reduced bycatch by an additional 40 percent.

The division’s biologists would need to sample areas to see when the small fish have moved out, Hawkins said, and there would have to be more enforcement staff.

“Based on my experience, and based on the scope of the proposal, it will be a monumental task for the division to handle these issues, if they pass.”

Hawkins cited this winter’s unusually long shrimp season as an example of the need for flexibility in management policies.

“Nobody I know would have had all these green-tailed white shrimp in December off the Outer Banks,” he said. “This is the first time in more than 40 years that’s happened. Usually they migrate to the south by now.”

Consumer Access

“We want consumers and restaurants in North Carolina to have access to healthy North Carolina seafood,” said Ann Simpson, interim director of NC Catch, a nonprofit educational and marketing group that promotes fresh North Carolina seafood.

“Our bottom line, really, is that fishermen need sustainable habitats and resources.”

Simpson said NCCatch agrees that it is important to minimalize the impacts of trawling, such as bycatch. But the appropriate – and effective – way to address issues, she said, is through the Division of Marine Fisheries’ Fishery Management Plan process, where all stakeholders work together towards best use and protection of the resource.

The shrimp management plan was updated in 2015.

Another collaborative effort between marine scientists, researchers and commercial fishermen – the Shrimp Bycatch Reduction Industry Work Group – recently reported that in the first year of testing, four new prototype devices have  reduced trawl bycatch by 44 percent.

The group, which just completed the first year of a three-year research project, was established in 2015 by the state Marine Fisheries Commission.

Simpson said that it is ironic that the shrimp trawling petition was presented around the same time the working group reported the success of the bycatch reduction gear tests.

“It seems to have a lot of promise,” Simpson said.

There are three species of shrimp commonly found in state waters, and their sizes vary tremendously by area because of the state’s extensive shoreline.

But Davis, the Carteret County shrimper, said that there’s an art and science to shrimping that the proposed rules don’t recognize.

Daytime shrimping is good when it’s blowing and the bottom is stirred up. Nighttime shrimping is good if the water is clear – because that when the shrimp are feeding. When the shrimp get big and start migrating, then daytime shrimping could be good.

“You just look around and around all day,” he said. “Sometimes, it’ll take us a day, a day and a half, to find the shrimp. I can count on one hand where they’ve been out farther than three miles.”

Learn More

• North Carolina Shrimp Fishery Management Plan
• North Carolina Wildlife Federation’s petition
• Ocracoke Island fishing community’s petition
• North Carolina Coastal Conservation Association 
• NC Catch

Despite what some experts view as significant problems in some coastal areas, the program director of the North Carolina Floodplain Mapping office believes the proposed new flood insurance rate maps are good, but will get better before final adoption next year.

John Dorman said he knows of the issues raised in recent weeks by coastal engineer Spencer Rogers, co-vice chair of the state Coastal Resources Advisory Council, and Rudi Rudolph, advisory council chairman and Carteret County shore protection office manager. Dorman appreciates them pointing out areas that in recent storms have flooded far worse than the maps appear to indicate they should.

“We have talked to Spencer and Rudi … but we feel like the maps are generally very accurate,” Dorman said. “We did about three years of studies on storm surge … and we’ve checked and re-checked and re-checked our models.

“We know there are some areas that flooded along the coast (in Hurricane Matthew in early October) more than the maps might indicate. But again, generally, we think the maps are good. And we are talking to and listening to those who raise these issues.”

Rogers and Rudolph spoke during Carteret County Beach Commission’s meeting last month, and have recommended that the state put together an ad hoc group to review and try to solve what they view as potential conflicts between state rules and the most recent flood maps, which were produced by the state and the Federal Emergency Management Agency. They pitched the idea earlier this fall to the council, which advises the state Coastal Resources Commission, and will pitch it again to the full commission during its meeting Nov. 30-Dec. 2 at the Hilton Doubletree in Atlantic Beach.

Their PowerPoint presentation shows clear contrasts between where some flood elevations would be set in the new maps, and where some flood levels have been in storms in recent years. Specifically, it shows numerous instances in which buildings that have flooded in recent storms – some severely damaged or destroyed – have been rezoned in the proposed new maps from the highest hazard areas, along the oceanfront or soundfront, to a non-flood zone, or at least into lower-risk zones. In other instances, Rogers told the beach commission, flood risks appear to have been overstated.

That, he said, sets up some potential conflicts with setback requirements under the state’s Coastal Area Management Act, and possibly some conflicts with state building codes, which govern what kinds of things can be built in flood zones and whether buildings must be elevated or not in those locations. For example, some properties that would be moved from the VE (wave zone) could, under the new zone they are in, be allowed to have buildings that are not elevated, or could have basements.

But the state has to use the maps once they’re adopted, and the local communities and insurance providers do, too.

To examine those kinds of issues, Rudolph and Rogers would like to see the state get members of the commission and its advisory council, the state Building Code Council and representatives of the North Carolina Floodplain Mapping Program, together to talk.

The rate maps show the flood risks in various areas of communities in the United States and designate high-risk areas (areas with a 1 percent or higher annual risk of a flood, known as a 100-year flood) and moderate to low-risk areas (areas with a less-than 1 percent annual risk of a flood).

On rate maps, areas of moderate to low risk are zoned B, C or X. Higher-risk areas are in zones that begin with either the letter A or V. Areas of undetermined risk are zoned D.

In high-risk areas, flood insurance is mandatory for federally backed loans. In moderate to low-risk areas, flood insurance is recommended, but optional.

Rogers and Rudolph point to structures in locations such as Hatteras and Wrightsville Beach that Rogers said don’t meet the “smell test” for accuracy. They also show examples in Carteret County, including one in Emerald Isle, but said most of the major problems appear to be in Wrightsville Beach and in Hatteras.

In years past, FEMA did all the work on the maps for the state, but that has changed in recent years. After Hurricane Floyd exposed major problems with the maps in 1987, he said, efforts to improve the maps began, but proceeded very slowly, only one county per year.

More than half of the maps at the time were older than 10 years, and three-quarters were at least five years old. But most counties didn’t have the money or staff to do their maps on their own.

Then in 2000, as a result of prodding by then-Gov. Jim Hunt, 22 federal and local community entities joined North Carolina and FEMA in an agreement to work together to update and maintain accurate, up-to-date flood hazard data for the state, and North Carolina created the Flood Plain Mapping Program.

Eventually, the state took over the program lead, with FEMA’s OK, and most feel it’s done a much better job, in part because it depends more on locals who know the areas better, but also because the technology used is much better.

Scientific models created over the past few years, incorporating storm surge and other data from more than 20 named storms since the early 1980, helped hone the maps.

While models are fine, Rogers said, it’s also important that real-world judgment augment those models. “But what we are getting is “modeled maps, for better or worse.”

Dorman, on the other hand, remains confident that the maps his office has and is producing are better than the feds did on their own, but is open to help.

“If anyone has better models or data, we’re certainly interested in seeing it,” he said. “We’re willing to sit down and listen to anyone.”

The state will take comments next year on the draft maps, which, so far, are expected to go into effect sometime in 2018. There is an appeal process, but appeals, if they happen, aren’t likely to come from people who have been moved out of flood zones or moved to lower hazard zones. Rather, they’ll come from areas – often on the sound sides of coastal counties – where the new maps place some homes and businesses in higher-hazard zones.

While no one has formally appealed yet, there have been major concerns expressed by residents and government officials in towns, including Jacksonville and Morehead City.

In Jacksonville, more than 800 additional structures in the downtown region would be placed in various flood zones, and many that were already in flood zones would have be elevated, some as much as 10 feet, largely because of the storm surge modeling.

In Morehead City, nearly 900 buildings would be added to the A zone, while there would be a slight decrease in buildings in the V zone.

In both towns, the changes would affect where new homes and businesses could be built, and how, and some people who had no flood insurance before would face thousands in annual premium costs.

Dorman said his office is making special efforts to meet with officials in such places and try to resolve differences and come up with the best maps possible; they’ve already had meetings to get input from residents and officials.

“Our goal is to use the best data available to produce the best, most accurate models possible,” he said. “If we get better data, we can make adjustments. We want everyone to be as satisfied as possible with the maps that are eventually approved.”

Dorman said he realizes that farther inland, in Kinston and other towns, Matthew caused torrential rains that triggered devastating flooding of areas that the maps indicate shouldn’t flood in 100-year storms.

But, he added, there’s really no way to map for a rainstorm that is generally considered once in a lifetime, if 12 to 18 inches of rain, and in some cases more, fell in less than two days.

“We’re pretty confident in that inland mapping, too,” he said. “We have studied 30,000 stream miles. But there were areas in seven or eight counties that experienced close to a 1,000-year rainfall event over a 24-hour period.” Again, though, he said his office is willing to listen.

But, Dorman said, most folks appear to be relatively happy with the proposed maps. Coastwide, more than 10,000 structures were either moved out of flood zones or placed in zones considered less hazardous, changes that would result in lower insurance premiums. For example, in Emerald Isle, in Carteret County, the number of buildings in the VE zone – the highest danger zone for flooding – will decrease from 1,135 to 441 if the new maps are approved as is. Some were moved out of the flood hazard zones entirely.

In the latter case – buildings moved out of flood zones – Dorman said the state is not saying there is no flood risk at all, and many factors affect where flooding will occur. Strength of a storm comes into play, but so does the storm’s angle of approach and the duration of the event.

“So many structures are still at some risk,” no matter what the maps indicate, Dorman said. “We saw that with Matthew in some cases in some areas. But in those instances, it was greater than a 500-year event (a 500-year storm event occurs, on average, once in 500 years, or has a 0.2 percent probability of occurring or being exceeded in any given year).

Dorman said the office still encourages those who might be near hazardous flood zones to buy insurance, as premiums for them would be much lower than those who are in hazard zones.

Rogers noted that all of those “events” – 100-year storms, 200-year storms, 400-year storms – merely reflect probabilities and averages and can, and do, occur more frequently, particularly if you consider effects in specific local areas.

In addition, he said, the category of a hurricane – 1 is weakest, 5 is strongest – doesn’t always correlate to storm surge. Some weaker storms generate higher surge than stronger storms.

Still, he agreed the state’s mapping efforts are much more accurate than the previous ones undertaken by FEMA, and said he doesn’t expect the ad hoc group conversation he and Rudolph are encouraging to add regulations.

Back in the 1980s, “we made some significant improvements in the building code” as a result of such efforts, he said. If the new maps are not adjusted to take care of the problems he and Rudolph noted, the idea is to find ways to better apply existing regulations to the new maps.

Rudolph said he understands that it would be very difficult for the state to make big changes; the mapmakers would have to run more models with different storms, and it would be very time consuming and expensive, to change the results of years of work. And, like Rogers, he praised the improvements the state has made, compared to the old FEMA maps.

On the other the hand, Rudolph noted that planners in some of the coastal counties, including Dare, have indicated they are concerned about the large number of structures moved out of the hazard zones.

The bottom line, though, Rudolph said, is that he and Rogers hope that with the Coastal Resources Commission’s blessings, talks among the various offices involved can “make the best of the situation.”

Learn More

• North Carolina Floodplain Mapping Program

TOPSAIL BEACH – Oceanfront property owners in Topsail Beach will be given more wiggle room to shift sand on their property under the newest proposed dune ordinance amendments.

Among the recommended changes recently approved by the town’s planning board is to allow property owners, if granted a town permit, to move more than one cubic yard of sand from a protective dune area.

Protective dunes are defined as a mound or ridge of sand at least seven feet above mean sea level. These dunes provide an extra layer of defense, reinforcing frontal dunes, which are immediately landward of the beach.

Altering that added protection has prompted contentious debates for more than a year in the town, with threats of lawsuits prompting officials here to try and strike a balance that will maintain the protective dune system while allowing “reasonable use” of oceanfront properties.

After months of discussing ways to rewrite portions of the dune ordinance, Topsail Beach planning board members have approved what they say is a compromise.

But before the board of commissioners will consider the recommended changes, town officials want to discuss the ordinance with Federal Emergency Management Agency officials, a meeting urged by the planning board.

“That’s where we’re real cautious,” Planning Board Chairman Frank Braxton said. “We didn’t want to misstep.”

Town Manager Mike Rose is in the process of trying to set up a face-to-face meeting with FEMA officials to discuss the amendments and make sure the proposed changes will not jeopardize the town’s federal flood insurance rating.

The current ordinance, which was amended in June 2015, prohibits protective dunes from being materially altered. Furthermore, builders cannot remove more than one cubic yard of sand from the dune per month.

“That’s difficult,” Braxton said.

Tricky for development, he said, because protective dunes on several vacant, oceanfront lots at the south end of town stack, in many cases, two and three rows deep between the frontal dune ridge and the road.

Town code requires houses have onsite parking for three vehicles.

In order to build a house and meet the parking rules, owners of those lots say they have to move more sand around than is currently allowed.

“Now, with the tweaking of that, they can actually quantify just how much sand is to be adjusted,” Braxton said.

Under the proposed “Oceanfront Protective Dune System Overlay District,” a property owner could apply for a development permit to “adjust” more than one cubic yard of sand within the protective dune area on a lot.

An applicant would have to submit a Coastal Area Management Act permit with the application for a town permit, which sets forth requirements including sand restoration.

The town would deny a permit application in a case where excavation and grading would result in the removal or loss of more than one cubic yard of sand from the protective dune area on a lot.

An application seeking to reduce the elevation of the protective dune area by more than five feet seaward of a proposed structure would also be denied.

“It allows sand to be moved on site, but it doesn’t allow it to be removed off the site,” Rose said. “You can’t just go through and push all the sand to one side. You can only push it back so that hopefully you’re fortifying that frontal dune that can’t be touched at all. It keeps the volume of sand the same on that site.”

In order to do that, a lot would be divided into sections. Sand within each section may be adjusted as long as it stays within that same area. Think of each section as a sandbox. Sand may be moved around within a box, but sand may not be pushed from one box into another.

“It is a complicated ordinance, but this has to be tried,” Braxton said. “It’s a compromise.”

That’s what the oceanfront property owners at the south end have been asking for, said Topsail Beach resident Julia Sherron.

When her father purchased a lot at the south end in 1975, the land was suitable for building. Hurricane Fran ravaged Topsail Island in September 1996, stripping Sherron’s family lot as well as neighboring lots of so much sand that they were no longer buildable.

The town began efforts to rebuild the dune following Hurricanes Bertha and Fran. Those efforts, paired with New Topsail Inlet’s steady migration south, have created a healthy dune system.

As sand on the strand and dunes in that area has accreted, owners of some of those lots have become eager to build. Town officials last year began examining the then 20-year-old dune ordinance after development projects along a small area of the oceanfront lots – there are 29 in all at the south end – were being pushed quickly.

Property owners whose homes are nestled along a series of three canals that extend from New Topsail Inlet toward the ocean shoreline are concerned that removing sand from the protective dunes could make their properties vulnerable in storms.

Sherron said she believes the proposed ordinance changes will ensure the protective dune area is properly maintained.

“I believe in property rights of the individual,” she said. “I also believe that they should have to build responsibly. I believe the changes to the dune ordinance will require them to build responsibly. We want our value and we want our possibility (to build). Because our lots are two rather large, substantial dunes, we have to excavate a certain amount of sand. We understand that they want all the sand to remain on the lot. Myself and the others would be satisfied to do it that way.”

Sherron said she would like for the “very technical” ordinance to be simplified a bit, but that, overall, what’s on the table for consideration is a good compromise.

Commissioners plan to hold a public hearing on the proposed amendments before voting on whether to accept the changes. The hearing and subsequent vote will likely be held no earlier than December.

WILMINGTON — The chairman and one co-vice chairman of the 20-member panel that advises the state Coastal Resources Commission has called for creation of an ad-hoc group to review and try to solve what they view as potential conflicts between state rules and the most recent flood insurance rate maps produced by the state and the Federal Emergency Management Agency.

Coastal Resources Advisory Council Chairman Rudi Rudolph, head of the Shore Protection Office in Carteret County, and council co-vice chairman Spencer Rogers, a coastal engineer with North Carolina Sea Grant and UNC-Wilmington, pitched the idea during PowerPoint presentations at the council’s most recent meeting in September in Wilmington. They hope to pitch the idea to the Coastal Resources Commission when it meets again, Nov. 30-Dec. 1 at the Hilton Doubletree in Atlantic Beach.

The slideshows show contrasts between where some flood elevations would be set in the new maps, and where some flood levels have actually been in storms of recent years.

Part of the problem, according to Rogers, is with the maps themselves, which are in draft form, but which, based on historical data and incidents, seem to have overstated flooding risks in some areas and understated those risks in others. That, he said, sets up some potential conflicts with setback requirements under the state’s Coastal Area Management Act, and possibly some conflicts with state building codes, which govern what kinds of things can be built in flood zones and whether buildings must be elevated or not in those locations. For example, some properties that would be moved from the VE (wave zone) could, under the new zone they are in, be allowed to have buildings that are not elevated, or could have basements.

“There’s no clear pattern,” Rogers said, and in some cases the decisions seem to defy logic.

But the state has to use the maps once they’re adopted, and the local communities and insurance providers do, too.

“It might be that we need to look at changing some things,” Rudolph said.

To examine those kinds of issues, Rudolph and Rogers would like to see the state get members of the commission and its advisory council, the state Building Code Council and representatives of the North Carolina Floodplain Mapping Program together to talk.

Rogers said he thinks that if that can happen, most of the issues can be resolved fairly quickly and easily.

The rate maps show the flood risks in various areas of communities in the United States and designate high-risk areas, or areas with a 1 percent or higher annual risk of a flood, known as a 100-year-flood, and moderate- to low-risk areas, or areas with a less-than 1 percent annual risk of a flood.

On rate maps, areas of moderate to low risk are zoned B, C or X. Higher-risk areas are in zones that begin with either the letter A or V. Areas of undetermined risk are zoned D.

In high-risk areas, flood insurance is mandatory, though rating options may be available to create savings. In moderate- to low-risk areas, flood insurance is recommended, but optional.

Back when the maps were first released for review in early summer, officials in several local governments contacted by CRO said they were surprised by some of the areas removed from the highest-hazard flood zones, particularly along the oceanfront, and either placed in lower-hazard zones or not placed in any hazard zone.

“They’re just maps, and people need to realize that lines on paper don’t mean there won’t be floods,” said Donna Creef, director of the planning department in Dare County.

In Dare County, the proposed rate maps would remove thousands of properties from flood zones altogether and move many others to lower-danger zones.

“Mother Nature doesn’t necessarily do what maps and lines say she will do,” Creef said.

In other areas, such as Emerald Isle in Carteret County, the changes might have something to do with beach-nourishment efforts and dune stabilization projects, but also the fact that there simply hadn’t been many hurricanes in recent years.

In Emerald Isle, the number of buildings in the VE zone – the highest danger zone for flooding – will decrease from 1,135 to 441 if the new maps are approved without change. Some were moved out of the flood hazard zones entirely.

In New Hanover County, planning director Ken Vafier did an analysis this past summer and concluded that, “the maps are changing to less restrictive zones on many properties around the county. Of course, this is not the case for every single property.”

Beaufort County doesn’t have an oceanfront, but it does have a long shoreline along what in recent years has come to be called the state’s “inner banks.” Beaufort County planning director Seth Laughlin sounded a lot like Creef.

“What we saw was very much unexpected,” Laughlin said of the new maps.

The unincorporated parts of the county, he said, saw likely improvements in flood insurance rates for 4,000 to 5,000 properties, and relatively few that would see negative changes.

Like Creef, Laughlin said he’s grateful that many property owners will likely see insurance rate cuts and might be able to do different things with their property, but he wonders about the complacency the maps might induce.

In years past, FEMA did all the work on the maps for the state, but that has changed in recent years. After Hurricane Floyd exposed some major problems with the maps in 1987, Rogers said, efforts to improve the maps began, but proceeded very slowly, only one county per year. More than half of the maps at the time were more than 10 years old, and three-quarters were at least five years old. But most counties didn’t have the money or staff to do their maps on their own.

As a result, in 2000, 22 federal and local community entities joined North Carolina and FEMA in an agreement to work together to update and maintain accurate, up-to-date flood hazard data for the state, and North Carolina created the Flood Plain Mapping Program.

Eventually, the state took over the program lead, with FEMA’s OK, and many feel it’s done a much better job, in part because it depends more on local folks who know the areas better, but also because the technology used is much better.

Scientific models created over the past few years, incorporating storm surge and other data from more than 20 named storms since the early 1980s, helped hone the maps.

Rogers said he isn’t contending that the state didn’t do a good job once it took over the lead role; in fact, he said the state improved the process and generally improved the maps. But that doesn’t mean the maps are perfect, or that they mesh perfectly with existing state rules and codes. And consistency is important because the maps are used by local government officials to make decisions on permits.

Rogers said he isn’t too worried about the potential “apathy” or “complacency” mentioned by folks including Creef and Laughlin, especially along the oceanfront areas of barrier islands. Structures there might end up removed from the VE zone under the new maps.  He said most who build there realize that no matter what the maps indicate, there is risk, and it can be quite significant. But, he added, removing inconsistencies among the maps, the state’s building code and CAMA rules is important.

Rudolph said he believes it would be valuable to get people from all of the agencies involved together, and hopes he and Rogers will be on the commission’s agenda in November to make much the same presentation they made to the advisory council.

“I don’t want to say the maps are wrong,” he said. “I think it needs to be a cooperative effort to resolve some of the issues we see in terms of conflicts.”

Rogers said there is a precedent for the type of cooperative discussion he and Rudolph would like to see take place. Back in the 1980s, “we made some significant improvements in the building code” as a result of such efforts, he said.

“I think what Rudi and I are talking about is not something that would create additional regulations,” he said. “What we’re talking about, really, is doing a better job of applying the regulations we have now under the new maps.”

Note: Rudolph said on Monday he and Rogers plan to present the slideshows again during a meeting of the Carteret County Beach Commission at 2 p.m. Oct. 24 at the Pine Knoll Shores town hall. — The Editor.

Learn More

• North Carolina Floodplain Mapping Program

People in North Carolina have always had the right to enjoy the state’s oceanfront beaches, though some of that beach might be owned by private land owners. They are granted that right by the so-called “public trust doctrine,” an ancient legal principle with roots in antiquity.

The doctrine has been legally challenged unsuccessfully in North Carolina before. But a case, Nies vs. Emerald Isle, now before the state Supreme Court raises new fears that the public’s right to use our beaches might be restricted.

Here, we explore the public trust doctrine and its history in North Carolina. We also take a look at the lawsuit and its possible ramifications.

What is the public trust doctrine? It’s a legal principle that holds that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use.

Where did it originate? The public trust doctrine has a history that can be traced to Roman law, although the modern version is more recent. The Magna Carta signed in 1215 by King John of England and rebel barons restricted the right of the king and the nobility to use estuaries and navigable waterways for private use. Over time, British law came to interpret that as meaning the public has the right to the use of certain lands and waters for the benefit of all. That legal view was transported to the British colonies and has subsequently become the basis for public trust laws and doctrine in the United States.

How is the public trust doctrine defined in North Carolina law?  In some areas, public trust lands or waters are very clearly defined by the legislature and the courts. By the late 19th century the state Supreme Court held that navigable waterways and fishing rights were protected under public trust doctrine. That view has subsequently been codified in state statute, which gives the public the “right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State …”

That same law goes on to say that the public has “… the right to freely use and enjoy the State’s ocean and estuarine beaches and public access to the beaches.”

Courts have defined the public beach to extend from the water’s edge to the mean high water mark, a line that fluctuates with tide amplitude and erosion. The state does not, however, own the “dry sand beach,” generally defined as the area between the mean high water mark and the base of the first line of sand dunes.

How is property defined in areas of public trust? Beachfront property owners typically own the dry sand area of the beach. It is important to note, however, that state courts have consistently held that title to the dry sand areas does not give the property owner an absolute right to privacy or to restrict access to that portion of their property.

The dry sand concept of property ownership is ingrained in North Carolina law, as well as the public’s right to access.

What about this lawsuit in Emerald Isle? Emerald Isle passed an ordinance in 2010 prohibiting “beach equipment” from being placed within 20 feet of the base of the frontal dune. The purpose was to allow emergency vehicles and other essential services an unimpeded route along the beach.

Gregory and Diane Nies, a New Jersey couple who bought their beachfront home at 9909 Shipwreck Lane in 2001, filed suit in Superior Court in 2011 claiming that the ordinance was an illegal taking of their property without just compensation. They are represented free of charge by the Pacific Legal Foundation, a California group that has been a staunch supporter of private property rights.

State Superior Court denied the claim in 2014 and granted a summary judgment for Emerald Isle. The Nieses also lost their appeal in November 2015. The state Court of Appeals, in unanimously affirming the judgment of the lower court, delivered a robust defense of the public trust doctrine.

“[W]e take notice that public right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness,” the ruling states. “Native-born North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches. Though some states, such as plaintiffs’ home state of New Jersey, recognize different rights of access to their ocean beaches, no such restrictions have traditionally been practiced in North Carolina.”

The Nieses appealed to the North Carolina Supreme Court, which earlier this year agreed to a discretionary review of the case.

What is a discretionary review? It means that the court uses its own discretion to decide which cases to take. Although there are times the state Supreme Court will take a case because of an appellate court error, typically discretionary review cases are taken to clarify some point of law or a procedural matter.

What are the arguments? According to David Breemer, council for the Pacific Legal Foundation, Emerald Isle’s actions constitute government overreach.

In responding to email questions, he outlined the arguments being presented in court.

“First and foremost, the Nies’s position is that the public trust doctrine has not taken their right to control access to their land,” he wrote. “There are ways in which the right to exclude can be denied. But the town did not utilize any such avenues … Until the town uses some proper process to acquire access rights, the right to control the land remains in the Nies.”

Breemer also argues that public trust doctrine does not give government unfettered right to the use of the land. “It (the government) can buy land or easements, it can prove a right of way in court based on facts, it can ask for an easement in return for some benefit to the owners, it can seek consent. But it cannot simply say this is public trust land so we have the right to control it and you don’t,” he wrote.

Outlining Emerald Isle’s position, Frank Rush, Emerald Isle town manager, points out that the appeals court confirmed years of court rulings. “The Court of Appeals confirmed a longstanding common law right and held that the ‘ocean beaches of North Carolina … are subject to public trust rights,’” he wrote.

Rush also notes there are three public trust issues involved — public trust lands, which are the wet sand area of the beach and public trust waters are not being contested. What is at the center of the litigation are public trust use rights.

“As recognized by the General Assembly and the Court of Appeals, custom plays a role in this determination,” Rush wrote. “The Court of Appeals took ‘notice that public right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness.’”

What Are the Implications? It’s important to remember that state courts have consistently held that the dry sand beach in North Carolina is privately owned but there is a compelling public trust need for access to the beach. Although the courts have held that is the case, that has never been written into law.

If the Supreme Court rules Emerald Isle unlawfully took the Nieses’ property under public trust doctrine, the consequences would be profound. It could mean that every jurisdiction on the North Carolina coast would have to go to every beachfront property owner and come to some form of understanding — an easement, consent agreement or eminent domain payment.

There is, of course, no assurance that everyone would agree to allow the public access to their property. Local officials fear a nightmare scenario of enforcement.

The Supreme Court could affirm the lower court rulings, which would give clarity to the public trust doctrine in North Carolina. The Pacific Legal Foundation could appeal to the U.S. Supreme Court.

To Learn More

• North Carolina Court of Appeals opinion, November 2015

RALEIGH — The University of North Carolina at Chapel Hill chose an interim director for its new environmental policy center amid heightened concerns both on and off campus about the potential for political interference in the center’s work.

The university announced Friday that Brad Ives, the university’s chief sustainability officer and associate vice chancellor for campus enterprises, will temporarily lead what’s being called the North Carolina Policy Collaboratory.

Ives said Tuesday that he anticipates the first staff to be hired within two months. One will coordinate research and the other will head community engagement.

The university also announced last week that Provost James Dean would head up a faculty advisory committee to provide direction and input for the new center.

Some faculty members on the Chapel Hill campus are worried that the collaboratory is being set up outside the normal process for establishing research entities at the university. The North Carolina General Assembly included the center in the state budget that it passed in July.

Ives said Tuesday that Dean would begin contacting faculty members identified as potential advisory board members in the next few days.

Much of the controversy has centered around as yet unconfirmed reports that Jeff Warren, science adviser to state Senate leader Phil Berger, R-Rockingham, was being considered for a key role at the collaboratory.

Berger’s office has not returned repeated inquiries for comment, but a report on the center in the News & Observer of Raleigh further raised concerns after Berger defended the legislative directive and said he believes state universities are shutting out conservative voices.

Steve Leonard, a UNC-CH political science professor who recently chaired the UNC system’s Faculty Assembly, said the questions go much deeper than who might work at the center. The sudden push by the legislature into university research surprised even those keeping a close eye on the budget, Leonard said in a recent interview.

In addition to the potential for “partisan politicization” there is a strong concern for what appears to be an effort to sidestep safeguards, Leonard said. The new center, which will be organized under Chapel Hill’s Business and Finance office rather than the school’s academic wing, wasn’t established under the same process as other research centers.

By directly setting up a new policy center rather than working with university and the UNC Board of Governors to create it, the legislature has already put the work of the center in question, Leonard said.

“What this is going to do is that no matter how good the science is coming out of this center, the fact that it has been tainted with a problematic process and set of procedures means that it’s going to make it that much harder even for good science to be accepted.”

Given how the center was created, it will be difficult to avoid a future controversy over the results of its research, he noted.

“When you circumvent or undermine good process and good procedures, the likelihood of good science being done or people at least not questioning the integrity of what’s done is radically diminished,” Leonard said.

University officials and legislators who backed the plan have pushed back on the idea that the collaboratory’s work would be influenced by the General Assembly.

The effort isn’t aimed at shaping science, but trying to get legislators additional information, said Sen. Harry Brown, R-Onslow. “The more expertise you can get the better.”

In Friday’s announcements, UNC-Chapel Hill Chancellor Carol Folt said the mission of the collaboratory is “to support academic-influenced, scientific research to help create solutions for natural resources challenges that are important to the citizens of North Carolina.”

The faculty advisory committee headed by Dean will provide input on projects and grants, Folt said. Dean met last week with the Executive Committee of the Faculty Council to go over how the center’s mission and structure will be developed.

In all, the Senate-sponsored budget provisions could send the collaboratory up to $8 million in funding in its first year. An additional budget provision, directs Ives’ office, to spend $500,000 annually for the next four years on a detailed set of studies and policy review on state nutrient management strategies with a special focus on the Falls and Jordan Lake watersheds near Raleigh.

Brown said the provision in the budget on nutrient studies on Jordan and Falls lakes are aimed at settling a decades long dispute between Triad and Triangle area legislators. “There always been a battle between Guilford and Alamance counties and Durham and Wake counties on how to manage this water issue.”

Rep. Chuck McGrady, R-Henderson, said he is skeptical that new studies on the issues with the lakes will net different results, but he is hopeful for now that Chapel Hill officials can keep the collaboratory independent of the politics surrounding the issues it studies.

“I’ve spoken to Chancellor Folt and Vice-Chancellor Brad Ives about that,” McGrady said. “They have assured me that the collaboratory will be consistent with how academic studies are approach so there will not be any political influence.”

McGrady said while he trusts Folt and Ives, he’s also taking a wait-and-see approach as the new center is set up. “The proof is in the pudding,” he said.

Leonard said more transparency at this point is essential. “The two questions I’m primarily interested in and I know that the staff and governance bodies across the system and especially in Chapel Hill ought to be interested in are who thought they had the authority to demand this sort of thing and push it through the legislature and how much did the administration in Chapel Hill cooperate on this and under what conditions,” he said.

Coastal Review Online and other new organizations have filed public records requests with UNC-Chapel Hill for documents relating to the collaboratory, but have not received a response.

Faculty Involvement?

Bruce Cairns, chair of the UNC-Chapel Hill Faculty Council, said he’s received numerous inquiries from faculty members asking how the new center will interact with the faculty.

“There continues to be a great interest in this,” Cairns said.

Discussions have started with university researchers in the related fields of study, he said, as well as how the faculty can participate in the process. Cairns said he expects that as a public university the process would be open and transparent.

Complicating the process, Cairns said, was the lack of specifics on structure and duties in the legislative provision.

“Most of the time these programs come from the faculty,” he said. “It’s different when the General Assembly is the one creating it.”

Cairn said that the Faculty Council would likely schedule a review of the idea once it takes more definite shape.

WILMINGTON – A proposed revision of New Hanover County’s industrial special-use permit clearly identifies industries, their potential effects and gives the public a greater voice in shaping the county’s future, its proponents say.

The suggested changes to the special-use permit, or SUP, are the result of months of discussions, debates and compromises hashed out by a community task force led by the North Carolina Coastal Federation.

The federation kicked off on Aug. 17 its “My Community: My Voice” campaign in downtown Wilmington to gain public support for its “model industrial SUP.”

A special-use permit is granted to allow a land use that does not fall directly under permitted usages in a specifically zoned area. Local governments can use the SUP process to review new industry’s potential effects, including the environment and public health.

“We have done a gentleman’s job trying to improve something good for the community,” said Mike Giles, a coastal advocate in the federation’s Wrightsville Beach office. “The county has a choice now on which way and how it grows. This is an effort to improve the process by being clearer and better organized.”

While the federation is marketing its proposed version in radio and television spots and on social media, the New Hanover County Planning Board will in the coming days look at what suggested changes the county has put forward in zoning ordinance amendments.

Shortly after receiving the proposed model industrial SUP, the county released a different set of proposed changes based on recommendations from its consultant, Michigan-based LSL Planning.

Leaders with the Wilmington Chamber of Commerce are reviewing the county’s proposal. Chamber Chairman Mitch Lamm wrote in an Aug. 18 email to chamber members that he does not support the federation’s model industrial SUP.

“The Chamber recommends that upcoming deliberations on this issue focus on the County staff’s new proposal,” Lamm wrote. “The North Carolina Coastal Federation’s campaign to build support for what they have dubbed the ‘model’ Special Use Permit (SUP) is not supported by the Wilmington Chamber. In 2015, the Coastal Federation created a community task force and hired a consultant to develop a revised version of the SUP.  Once drafted by the Coastal Federation’s consultant, that proposal did not receive a majority of support from the members of the committee not employed by the Coastal Federation. The Coastal Federation proposal does not represent a community consensus on this issue and does not adequately address the business community’s concerns.”

Giles said Lamm had not discussed the federation’s final proposed version submitted to the county. Lamm did not respond to a request for comment.

Wilmington City Councilman Kevin O’Grady was a member of the project team that created the model industrial SUP.

“I think this model industrial plan is a great plan,” he said. “It was tough going through and getting the language written in a way that balances the interest of business and the environment. We do want businesses to come here. This allows a little more scrutiny on those businesses that impact the environment.”

New Hanover County adopted a SUP for industry in 2011. Pressure from business groups that claim the SUP deters economic growth prompted county staff and the planning board in 2014 to make permit revisions. Their suggestions sparked concerns among residents and environmental groups, who feared some of the proposed changes loosened the vetting process for intense industry and manufacturing.

This was also during the nearly decade-long battle some area residents and environmental groups fought to keep Titan America from building a cement plant in Castle Hayne. The proposed plant, which was expected to start production in 2011, prompted concerns about the potential effects on air quality, groundwater and human health. Citing regional market conditions, the company in March announced it was axing plans for the Castle Hayne plant.

“Titan was a hard-fought victory, but it very much changed our community,” Tracy Skrabal, a coastal scientist and manager of the federation’s regional office in Wrightsville Beach, said to an audience of more than 50 people who attended the meeting to start the “My Community: My Voice” campaign. “Titan woke up this community.”

With a $25,000 grant from the Lillian Goldman Charitable Trust, the federation hired a Charlotte-based consultant and pulled together a group of stakeholders, including the Wilmington Chamber of Commerce, New Hanover County Airport Authority, representatives from the county’s beach towns, professors from the University of North Carolina at Wilmington and General Electric representatives. In all, a task force of about 15 people met in round after round of “lively” discussions, Giles said.

The end result is a revised industrial SUP that distinguishes low-impact and heavy industry, provides a comprehensive review of heavy polluting industries, establishes clear language, a predictable timeline and specific guidelines for applicants, said Karen Dunn, the federation’s clean communities coordinator.

“One of the major benefits is the checklist we have established,” Dunn said. “We have constantly heard from one spectrum to the other the question ‘what is required?’ This checklist gets rid of that vagueness. It puts it in a clean and concise format.”

The checklist, a table of permitted uses created by the North American Industry Classification System, lets an industry know whether it is permitted by right to operate within a specified zoning district.

The model industrial SUP increases the amount of time the county gets to review heavy industries, such as nuclear power plants, cement plants and large chemical plants. The revised proposal also requires the county hold a community information meeting before such industries filing a permit application.

The revisions also prohibit mining deeper than 35 feet.

S.T. Wooten is asking the county to grant the Wilson-based company’s request to expand its existing sand mine operation off U.S. 421 near Duke Energy’s Sutton Plant. The company wants to mine roughly 80 additional acres. Material from the mine will be used to fill the coal-ash ponds at the plant.

The company wants to dig to a depth of 55 feet, which raises questions about potential effects on the Peedee aquifer.

The New Hanover County Planning Board is reviewing the county’s proposed zoning ordinance amendment during a work session at 3 p.m. Tuesday at the county’s government center, 230 Government Center Drive. The board’s next meeting is Sept. 8.

It is unclear when the issue will go before county commissioners, though there is speculation that that will not happen until after the Nov. 8 election. There are three open seats on the board.

Commissioner Rob Zapple’s four-year term expires in 2018.

“For the last five, six years, we’ve seen how this impacts our community,” he said. “We are talking about the future of New Hanover County. New Hanover County needs a strong SUP process.”

Correction: This story was corrected at 10:30 a.m., Aug. 24. It had incorrectly reported that Commissioner Rob Zapple supports the model SUP devised by the North Carolina Coastal Federation and others. He says he supports a stronger SUP process.

The recent resignation of a founding member of the science panel that advises the state’s Coastal Resources Commission leaves an imbalance in expertise, according to some of the panel’s remaining members.

East Carolina University geologist Stan Riggs resigned July 24 in protest over legislative decisions on coastal policy during the past five years, restrictions placed on the member panel’s work and, most recently, the commission chairman’s stated desire to reclassify currently designated inlet hazard areas on the state’s coastal barrier islands.

“What I see happening is people are not paying attention to what the science panel has done and what’s really happening in our coastal system,” Riggs said in a recent interview. “If we want a viable economy going into the future and help people living out there on the coast, we have to deal with the long term as well as the short term. We’re building infrastructure out there for at least 100 years. Our resources are too important for ignoring the dynamics of that system.”

The panel may have up to 15 members. Five of the nine remaining members of the panel Riggs proposed in 1996 are engineers. Riggs’ departure leaves only three geologists on the panel, William Cleary of the University of North Carolina Wilmington; Stephen Benton, who retired from the North Carolina Division of Coastal Management; and Greg “Rudi” Rudolph of Carteret County’s Shore Protection Office.

“The panel has been continually reorganized around trying to make a match between coastal sedimentary geologists on one hand and coastal engineers on the other hand,” said Charles “Pete” Peterson, a biologist with the University of North Carolina’s Institute of Marine Sciences in Morehead City and also a member of the panel. “Those two groups have different ways as a whole of looking at things and analyzing things. It’s productive to have both voices, and the panel has the capacity to debate what the different disciplines are saying.”

Peterson named several geologists he’d like to see considered as Riggs’ replacement, including Reide Corbett of UNC’s Coastal Studies Institute, a UNC Wilmington professor and others. “Those people are the kind of strong coastal geologists that our panel is severely underweighted in,” Peterson said.

Corbett said it would be an interesting offer, especially in light of the controversy that has surrounded the panel in recent years, but he would consider it.

“As frustrating as it is, I still think we need that sort of science on that panel. It’s only going to get worse if no one is there to voice that opinion,” Corbett said of the geologists’ perspective.

Rudolph said he’d also like to see another geologist appointed to the panel but the sometimes controversial nature of the panel’s work could present challenges. “Some don’t like the CRC because it’s more political now,” he said.

Rudolph noted he didn’t believe members of the panel should be involved in choosing Riggs’ replacement.

“I’m not a big fan of the science panel selecting who the future science panel members are going to be because then it’s more like a club,” Rudolph said.

It Started with Sea-Level Rise

The panel’s work on sea-level rise projections made it a political target and thrust the state into the national spotlight in the arena of climate science. The state General Assembly’s response to the report confounded geologists on the panel.

Riggs said that General Assembly’s reaction to the panel’s original, 2010 sea-level rise report, which forecast up to a 39-inch rise by 2100, was the beginning of the end for him.

“The original sea level report, things were still very healthy and the science panel was working. Things were exciting. We had the support of the division and the CRC,” Riggs said. “The atmosphere changed when Republicans gained control in Raleigh. It was at that point where the legislature rejected our report,” Riggs said.

First there was a bill that didn’t pass that would have “outlawed sea-level rise,” as Riggs put it. The next year, a bill did pass that put constraints on what the state could do with respect to talking about and planning for sea-level rise.

“That was the beginning,” Riggs said. “That’s when it sort of began to deteriorate, in my opinion.”

Riggs said the 2010 sea-level rise report with its outlook to 2100 was used as a model by other coastal states that were behind North Carolina in considering the implications. Here at home, the developers on the coast also began to realize what the report could mean for them and appealed to their representatives in Raleigh to block any rulemaking based on the projections.

“What really got the natives going on that was that the CRC at the time directed its staff that all future construction had to consider that (scenarios looking forward to 2100),” said Rudolph, who studied for his master’s degree at ECU with Riggs as his adviser and who also worked as Riggs’ research assistant. “The policy was the thing that got people all riled up and screaming to the General Assembly.”

Undeterred, the panel continued its work, moving on to study and map inlets in great detail. Panel members put in an “incredible amount of time,” Riggs said.

“The whole problem associated with development on the inlets was coming to a head. We were working on (the inlet project) until the assignment came for the 2015 sea-level rise report. It was basically dictated to us how we had to do that,” Riggs said.

Rob Young, a geologist in charge of the Program for the Study of Developed Shorelines at Western Carolina University, and Antonio Rodriguez, a geologist and geophysicist at the UNC Institute of Marine Sciences, resigned from the panel in 2014. Both cited at the time personal frustrations with the legislative mandates placed upon the panel, including those guiding its work on sea-level rise. Riggs said the dictatorial environment prompted their departures.

“It got too restrictive for them,” he said. “These young, bright scientists that helped write the original report decided for their own reasons why they didn’t want to waste their time anymore.”

The updated report was due March 31, 2015, but was finished well in advance. Once the panel completed its work on the report, it never met again. Riggs said he had grown increasingly frustrated with the process. The international science community had helped with the original report but the panel was not allowed to draw from that expertise for the 2015 update. Also, former members of the panel were not allowed to help.

“They didn’t allow us to do our own science review. They did allow two engineers to review it and they made valuable contributions to the report,” Riggs said, adding that those contributions were no substitute for an open review process, “which is critical for science.”

Riggs said there were also other reasons why he and other geologists resigned. The nature of the panel had changed over the years, Riggs said, from purely a scientific endeavor to one that now includes members that he said may have a vested interest in coastal policy decisions.

“Some (panel members) run major companies that make a lot of money pumping sand and hardening shorelines. I wanted to let people know that it’s not working very well. Everything is not copasetic in the kitchen,” Riggs said.

Panel member Tom Jarrett is an engineer formerly with the Army Corps of Engineers and now with Coastal Planning and Engineering of Wilmington. The firm specializes in beach re-nourishment and inlet-dredging projects.

Jarrett was appointed to the panel in 1997, while still with the Army Corps, and like Riggs is one of the original members.

“I retired from Corps in December 2000 and at that time the CRC didn’t see any reason for me not to continue to serve. They elected to keep me on,” Jarrett said. “Even though I now work for a private consulting outfit I’ve tried to keep my views neutral. As far as any conflict of interest, I’ve been very careful to stay out of that.”

Jarrett said he’s been intimately involved in development of inlet hazard areas, a study in which Riggs was less involved. Jarrett said he took a leadership role in pushing for legislation to allow terminal groins to be built on North Carolina beaches, but that’s where his role ended.

“With terminal groins, I admit to playing a role in getting that going, but once the ball got rolling I didn’t take any role in it,” Jarrett said.

Jarrett also provided comments for the panel’s subsequent report on terminal groins.

“I commented on that but I’ve tried to be as neutral and objective as I possibly could,” Jarrett said. “Nothing I said can be interpreted as having benefited the private sector.”

Jarrett said serving on the panel takes a lot of time and effort, but he plans to continue to serve as long as he’s wanted.

“I’m not getting paid for it,” he said.

Other Remaining Members

In addition to Cleary, Jarrett, Peterson and Rudolph, the remaining members of the panel are Margery Overton, the panel’s chairwoman, of the Department of Civil, Construction and Environmental Engineering at North Carolina State University; Spencer Rogers, who has geology and engineering degrees but works as an engineer with North Carolina Sea Grant in Wilmington; William Birkemeier, a retired engineer from the Army Corps of Engineers; and Elizabeth Sciaudone, also of the NCSU’s engineering department.

“Usually our challenge is to find enough engineers. Interestingly that’s not the mismatch at the moment,” Peterson said.

Peterson said the remaining members of the panel are “people who have contributed mightily in their fields and are respected in their fields.” Their philosophical differences lead to interesting debates, he said.

“But I don’t think anybody is going to be pushed around,” Peterson said.

Frank Gorham is chairman of the Coastal Resources Commission and has the responsibility of appointing Riggs’ replacement on the panel. A self-described “big science guy,” Gorham said he strives to get at “real data” on coastal issues.

“I have the greatest respect and appreciate for what Stan did for the state and I’m sorry to lose him,” Gorham said, adding that he was pressured after the sea-level rise report to fire the entire science panel and start from scratch.

“I opted not to do that. I kept Stan Riggs because I respected him,” Gorham said. “We have to plan for a range of cases. Ten geologists in a room will come up with 11 different answers. I am very used to scientists disagreeing and I think that’s healthy.”

Gorham said he wants to wait on making a new appointment until after a set of priorities is established for the panel.

“Once we agree on those, then we go find the expertise,” Gorham said.

Those priorities could include updating erosion predictions and cycles, particularly in designated inlet hazard areas, which Gorham would like to rename “inlet management areas.”

“Inlets have a greater erosion rates than non-inlet areas, I realize that,” Gorham said. “It’s frustrating when people’s homes get put in an inlet hazard area. If we called it something different than inlet hazard and we got people to recognize the severe erosion rates …”

Gorham interrupted himself, noting that Riggs thought the decision to change the designation meant downplaying the increased rates of erosion.

“It’s more an attempt to get people to pay attention to the study,” Gorham said. “We had people more worried about their property value going down and then they wouldn’t even listen to the data. I live close to an inlet. I know there’s more instability close to inlet. We need to get the science panel to show where an inlet has an impact.”

Gorham said subcategories within the inlet areas may be the best approach, with updated science on erosion rates there, which would likely vary in degrees of severity of erosion.

“We have to factor in man’s willingness to do beach re-nourishment and inlet dredging,” Gorham said. “Man’s desire to keep beaches re-nourished will offset some of the higher erosion rates that are due to an inlet.”

The Final Straw

Riggs said the commission’s recently suggested inlet zone reclassification was the final straw for him. Softening the definition will only encourage irresponsible development, he said.

“You’re building on a sand pile that wasn’t there a few decades ago. That’s crazy. We need to do a better job of managing our resources and protecting people because sea level is changing and it’s going to have a big effect on inlets,” Riggs said.

His protégé, Rudolph, however says taking a new look at inlet hazard zones is acceptable as a means of evaluating future risks, as long as the panel ignores the policy implications.

“If the CRC wants to do the setbacks differently in inlet hazard areas, compared to oceanfront, that’s totally their decision,” Rudolph said. “If the CRC’s concern is that you have inlet hazard areas and it connotes bad things and maybe that’s not what the connotation needs to be, then that’s really up to them. Most of the inlets are pretty much developed already. Changing the policy is going to be difficult because you already have a bunch of structures there, but we need to look at preventing more inlet-ward development. Setbacks moving seaward on the oceanfront may be OK, but on inlets it’s a whole different process. They wouldn’t have us looking at it if they weren’t thinking about doing something different with it.”

The Heart of the Group

While Riggs wasn’t the first geologist to step down in frustration, his departure is perhaps the greatest loss to the panel, Peterson said.

“Losing Stan is kind of like losing the heart of the group,” Peterson said. “His seminal role in getting this established – he was the first person they thought of to help formulate the group to speak to the many choices we have in response to challenges in our coastal zone. His loss will be felt in every meeting and every hour that the panel does its work.”

Riggs, 78, said he plans to spend his remaining years finishing up books he’s been writing that deal with the dynamics of coastal systems. As a lifelong educator, he sees it as a higher calling.

“I can do far better working toward educating the public than I can fighting the legislature. It takes an educated public to get a good legislature,” Riggs said. “The decision was, what are you going to do with the rest of your life? I’m not going to piss away any more time. I’m not an angry person who is out to get anybody, I’m just trying to see that we take better care of the coast.”

Learn More

• Sea Level Rise Study Update
• Update on Beach Erosion Report

Many coastal property owners should save money if newly proposed federal flood insurance maps are adopted, but some officials fear that the maps’ changes might lead to complacency.

“They’re just maps, and people need to realize that lines on paper don’t mean there won’t be floods,” said Donna Creef, director of the planning department in Dare County, where the proposed maps would remove thousands of properties from flood zones altogether and move many others from to lower-danger zones.  “Mother Nature doesn’t necessarily do what maps and lines say she will do.”

Dare has the largest number of rental units and second homes on the ocean and sounds in the state. Changes in the proposed maps, Creef said, would positively affect the insurance rates and or required elevations and flood-proofing of close to 16,000 buildings.

“Obviously, that’s a very good thing for a lot of people, homeowners and business owners,” she said.

The proposed maps move the 100-year flood zone along the oceanfront significantly landward, Creef said. That will result in lower flood-insurance premiums or remove any requirement for that type of protection. “But we are a little concerned that some people who get moved out of a flood zone altogether might think they no longer need flood insurance,” Creef said. “That might be the case, but there’s always a margin for error with maps, and again, storms don’t always do what the maps indicate they will do.”

The proposed maps also lower the base flood elevation, in some areas by almost half. That could allow property owners to enclose and convert to living space areas underneath houses that are on stilts.

The concern, Creef said, is that people might do those kinds of things, or simply not renew flood insurance policies when they expire, then be surprised.

The Federal Emergency Management Agency requires that each state produce the maps about every 10 years. According to Creef and others, one reason for the changes appears to be that the state was more involved in the mapping process this time, and state officials might well have more intimate knowledge of areas that have been flood-prone.

In other areas, such as Emerald Isle in Carteret County, the changes might have something to do with beach nourishment efforts and dune stabilization projects, but also the fact that there simply haven’t been many hurricanes in recent years.

In Emerald Isle, the number of buildings in the VE zone – the highest danger zone for flooding – will decrease from 1,135 to 441 if the new maps are approved as drawn.

“For the vast majority of properties, there would be no change,” town manager Frank Rush said, but in some cases, properties have been completely removed from a VE zone and are no longer in a flood zone, while in other cases the property has been changed from a VE zone to an AE zone, which is generally less restrictive than VE.

An analysis by Josh Edmondson, the town’s planning director, shows that 99 would be added to a flood zone as a result of the new maps. As a result, the town doesn’t plan to appeal, but would help those individual property owners who choose to do so.

In high-risk areas, flood insurance is mandatory, though rating options may be available to create savings. In moderate to low-risk areas, flood insurance is recommended, but optional.

The story is different, however, in scattered pockets in Carteret County, where there are new V zones in the eastern end of the county in Smyrna, Marshallberg, North River and Straits, and more properties in flood zones in parts of Morehead City and Beaufort.

Farther south in the much more urbanized New Hanover County, planning director Ken Vafier did an analysis and concluded that the proposed maps will include more property in less flood-prone zones.

The VE zones along the Intracoastal Waterway are narrower than they are in the current maps, with more las in the less restrictive A zone, Vafier explained. Base flood elevations are also slightly reduced, he said.

“Again, this is a general trend and there are certainly some sites being proposed to change to a more restrictive zone,” Vafier explained. “Whether changes are detrimental or beneficial to a property owner will depend on each specific site, as well as the property owner’s perspective.”

Steve Stone, deputy county manager for Brunswick County, said that in general, the new maps are favorable for those concerned about flood insurance and flood insurance rates. Stone said some property in the county appear to have been removed from flood zones entirely, but the larger shift is from zones that indicate serious risks to those that predict less damage.

There are a few properties, he said, particularly along inland streams, that are placed in higher-level flood zones but “the overall, net result, I’d say, is positive for Brunswick County property owners.”

While some of the municipalities have engaged in some beach nourishment activities since the last maps came out, he doubts that impacted the maps, Most likely, it’s just more accurate mapping.

Up to the north, between roughly midway between Carteret and Dare, Beaufort County doesn’t have an oceanfront, but has a long shoreline along the Pamlico River. County planning director Seth Laughlin sounded a lot like Creef in Dare County.

“What we saw was very much unexpected,” he said of the new maps.

The unincorporated parts of the county, he said, saw improvements for 4,000 to 5,000 properties, and relatively few that would see negative changes.

Like Creef, he said he’s grateful that many property owners will likely see insurance rate cuts and might be able to do different things with their property, but he wonders about the complacency the maps might induce.

People might not renew their flood-insurance policies, he said, and could be surprised when storms don’t conform to the lines drawn on the maps. “We’re happy for people who would benefit, because flood insurance is expensive, and that cost can be a real deterrent to people who want to develop properties than contribute to the tax base, too,” Laughlin said. “But I’d be hesitant to tell people not to buy flood insurance.”

At least one coastal North Carolina county official involved in flooding issues, said some in the field were so surprised they wonder about the motives. “Is it an attempt to get the federal government off the hook for damage?” said the official, who didn’t want to be named. “The thought is, if people don’t have to buy policies, and don’t, then they have damage, the federal program doesn’t have to pay.”

But Rudi Rudolph, who as shore protection manager for Carteret County is responsible for monitoring flood insurance changes, said he believes the changes, particularly along the oceanfront are logical and based on good data, especially because the state got involved and has more and better information about specific areas along North Carolina’s coast.

He said there is some danger, however, because some hurricanes that aren’t expected to be massive 100-year storms when they hit can still surprise people, either because of direction or duration, and cause flooding one might not expect from the maps.

But Rudolph doesn’t expect widespread abandonment of flood insurance policies in areas where the new maps might indicate that possibility. Mortgage companies, he said, are not likely to let too many folks put their loans at risk.

“It’s their money that is at risk, too,” he said. “Even if you’re not in a flood zone according to the map, they can require you to have flood insurance.”

To Learn More

• N.C. Flood Mapping Program
• FEMA flood data for North Carolina
• National Flood Insurance Reform Act of 1994
• Flood insurance basics
• Flood insurance fact for coastal landowners
• Note: For the proposed flood maps check the website of the county you’re interested in.

ELIZABETH CITY — Blue catfish grow fast and grow big – and they taste good. But the greedy interloper could become an ecosystem nightmare in North Carolina if a recent regulatory change is not reversed.

The voracious apex predator has made its way down the Chesapeake Bay into the Chowan River and Lake Gaston, where three of the fish caught in the last six months each exceeded 100 pounds. Fishermen and scientists have reported seeing increasing numbers of bycatch of the blue catfish in crab pots and nets.

“It seems like here in recent years, the population levels have reached a tipping point,” said Charlton Godwin, fisheries biologist with the state Division of Marine Fisheries.

Godwin said the number of blue catfish, one of the largest of the eight or so native catfish species in the U.S., has increased notably in the western Albemarle Sound and its tributaries, and the mature fish pretty much eat whatever they want. “I’ve seen striped bass up to 22 inches in the stomach of a blue catfish,” he said.

Fortunately, blue catfish make delicious eating, and a robust commercial fishery is keeping the invasive species from wiping out populations of native fish, such as river herring, blue crab, largemouth bass and striped bass. But a rule inserted in May in the federal Farm Bill could potentially kill the commercial market, and in turn leave long-living blue catfish free to proliferate, unfettered, in the state’s sounds and rivers.

“Economically, it’s a huge issue for North Carolina,” said Jerry Schill, president of the North Carolina Fisheries Association, a commercial fishing advocacy group.

Despite criticism from the federal Government Accounting Office that said it would be duplicative and costly, the U.S. Senate in May added a program to the 2008 Farm Bill that changed the responsibility for inspection of catfish from the Food and Drug Administration to the U.S. Department of Agriculture, according to a letter to the leadership of the U.S. House of Representatives signed by 200 House members. The FDA regulates fish, while the USDA regulates beef, poultry and pork.

In the letter, members call for a bipartisan joint resolution of disapproval, a procedural action intended to end the USDA catfish inspection program and leave it under the FDA’s jurisdiction.

Mississippi Republican U.S. Sen. Thad Cochran is behind the new program, which provides inspection for farm-raised catfish coming from China and Vietnam, competitors with Mississippi catfish farms. According to supporters of the regulatory shift, the imported Asian catfish are often tainted with toxic chemicals and require thorough inspection by USDA. The Catfish Farmers of America, a Mississippi-based trade group, said the USDA program would provide a “greater level of protection for American consumers” than the FDA inspection.

Critics contend the move was intended to make it more difficult to import catfish without doing anything to make imports safer.

But, paradoxically, U.S. wild-caught catfish have been caught in the same regulatory net. Other bycatch are U.S. fishermen and seafood processors, who would be forced to do costly upgrades to their plants to meet the new standards required by the USDA. At the same time, the program will cost millions more to run, and will result in higher prices for consumers.

“The facts are clear,” said U.S. Rep. Vicky Hartzler, R-Mo., in a press release dated July 7. “The taxpayers have been put on the hook for an unnecessary and wasteful program that was dropped in the Farm Bill Conference Report at the last minute, without a vote, to protect special interests.”

According to the Fisheries Association, USDA inspection will have a negative impact on wild-caught catfish and the related jobs and small businesses the fishery supports in the domestic commercial fishing industry

“It’s just boggling my mind as far as the complexity of this issue,” Schill said.

Blue catfish has developed into a significant commercial fishery in the northeast, but unless the USDA inspection is reversed, there are doubts whether it will survive.

“We’ve been processing catfish for 50 years, and never had a problem,” said Ricky Nixon, an owner of Murray L. Nixon Fishery in Edenton.

Nixon said he has until September 2017 to make changes required by the USDA, which would essentially require building a new plant – not a feasible option.

“If you take Murray Nixon out of the equation, with how much we handle – these fish are eating up everything – it’s going to be a problem,” he said. “We’re the only catfish processor in northeastern North Carolina.”

It would also create a domino effect, he said. At least half of his 48 employees would be laid off. And fishermen would stop fishing catfish because there’s no place to sell it.

Nixon said 2.5 million pounds of blue catfish, most weighing 3 to 8 pounds, were caught last year, selling for 30 cents to 70 cents a pound.

“That’s good money,” he said.

Not only does the successful remedy to “blue cat” overpopulation – eating them – benefit the fishing community and the consumer, it could help keep a balance in the ecosystem.

“Our concern is, if the population of blue catfish keeps rising,” said Corrin Flora, marine fisheries biologist with the state Division of Marine Fisheries in Elizabeth City, “it’s going to eat our native fish species.”

Willy Phillips, owner of Full Circle Crab Co. in the Tyrell County town of Columbia, said that hundreds of pounds of blue catfish were found during a few months over the winter in crab pots near Oregon Inlet and the Alligator River – a first for the area.

“They were everywhere,” he said. “That was a spike that really caught everybody’s attention. That was just amazingly different – the sheer volume.”

A native of the Mississippi river basin, blue cats – yes, they’re blue and have whiskers – were introduced into the tributaries of the Chesapeake Bay in the 1970s as a recreational fish, said Bill Goldsborough, fisheries director for the Chesapeake Bay Foundation.

But similar to other non-native species – such as lionfish and kudzu – they’ve become invasive, he said. In a recent survey of the James River, for instance, blue catfish composed more than 70 percent of the biomass, he said, although it appears that their population is leveling off.

Blue cats can grow up to 140 pounds and 4.5 feet long – twice the size of any native Chesapeake catfish.

Biologists are not sure what impact blue catfish has had on populations of other fish species, Goldsborough said, but it is known that they’ve eaten more than their fair share of shad, herring, blue crabs and menhaden.

One of the management tactics recommended by the Invasive Catfish Task Force established in 2012 by Chesapeake Bay fisheries managers was creating incentives to build a commercial fishery. A 2014 draft task force report warned that action was required to prevent “irreversible” damage in the Chesapeake.

Agencies in Virginia and Maryland, alarmed by the expanding range and population of blue cats, have put considerable resources into research and education of the fishing community, Goldsborough said.  For instance, some fishermen have released blue cats into new water bodies as a way to establish them for recreational fishing, without realizing that the big fish will take over other species.

Goldsborough said that if North Carolina wants to get ahead of the blue catfish menace, the state should encourage people to catch them and not throw any back. It would also be a good idea, he added, to put regulations in place against keeping live catfish with the intention of spreading them around.

Flora, with Marine Fisheries, said that there are already “a lot” of blue catfish in Lake Gaston, where Landon Evans, 15, of Benson, last month caught a state record 117-pound, 8-ounce blue cat. The fish have so far been found only in waterways bordering southeastern Virginia, she said, but the extent of their range remains unclear. The species has also been documented in the Neuse, Tar and Cape Fear rivers.

The division regularly monitors waterways with gill net and trawl surveys, Flora said, and is keeping a close eye on blue catfish.

“We realize there is a concern in the area,” she said.

The House left town this month without taking a vote, said Joshua Bowlen, chief of staff for Rep. Walter B. Jones, R-N.C., who signed Hartzler’s letter.

“My take is if they haven’t moved it yet, there’s a problem,” Bowlen said. “There’s something that the leadership sees that’s caused them not to move this thing yet.”

The matter will likely be brought up again after lawmakers return to work in September, he said.

Learn More

• Chesapeake Bay Invasive Catfish Report and Recommendations
• Rep. Vicky Hartzler’s letter