21156_COLLEY, DORIS_19990120 (2)

ApplicantSVame
Address
City fir(,_
Project Location
-A. _A AND DREDGE AND FILL
GENERAL N° 021156 -I,,
PERMIT
as authorized by the State of North Carolina
Department of Environment. Health, and Natural Resources and the Coa �l Resources Commission
in an area of environr
ental concern pursuant to 15A NCAC f7N - QOr)
. n, it _ r-. I
Phone Number 11Q
FA State Zip
ty, �"Ite Road, Water Body, etc.) 14-y —
Type of Project Activity
PROJECT DESCRIPTION I SKETCH
Pier (dock) length
Groin length
number
Bulkhead length CW
max. distance offshore
Basin, channel dimensions
cubic yards
Boat ramp dimensions
Other
This permit is subject to compliance with this application, site
drawing and attached general and specific conditions. Any
violation of these terms may subject the permittee to a fine,
imprisonment or civil action; and may cause the permit to be-
come null and void.
This permit must be on the project site and accessible to the
permit officer when the project is inspected for compliance.
The applicant certifies by signing this permit that 1) this pro.
ject is consistent with the local land use plan and all local
ordinances, and 2) a written statement has been obtained from
adjacent riparian landowners certifying that they have no
objections to the proposed work.
(SCALE:
applicant's signature
Ip rmit of cer's signature
ao (f) C3, i55ui g date / j� expi ation date
attachments ! Ov
In issuing this permit the State of North Carolina certifies that Z O BO
this project is consistent with the North Carolina Coastal application fee
Management Program. ,

Permit #: 99W35
Type: RP
INSPECTION REQUEST
MASTER PERMIT # -
Inspection Type: OTHE
Request Date: / /
Location: SOUND DR 7000 District:
Contrctr: DENNIS MCCLEES Insp. ID: -:q
License #:
Date Inspection Desired: 04/13/99 Tine Inspection Desired:
Owner: COLLEY, DORIS
INSPECTION RESULTS
Vehicle ID:
Site Odor:
Insp. Date: 4 /13/ - Ci
RESULTS OF INSPECTION
Pass Correction
Ij 1-1
CORRECTION CODE OR COMMENTS
Inspection
Reinspection
IF CORRECTION IS REQUIRED
Reinspection
Required ?
F1
Reinspection Fee
Required ?
F
ADDITIONAL NOTES
1

* * * * * * * * * * * * * * * * * * * * * *
RIPARIAN AND LITTORAL RIGHTS
by
Walter F. Clark
North Carolina State University
Raleigh, NC
* * * * * * * * * * * * * * * * * * * * * *
VI -A

RIPARIAN AND LITTORAL RIGHTS
I. Introduction
The word riparian means belonging to the bank or shore of a watercourse. The
term riparian rights refers to a specific set of rights to use the water (and submerged
land) that are afforded the proprietor of land immediately adjacent to the water.
In some jurisdi ns the words riparian and littoral are used coextensively but in
orth Carolina ittor refers to land that is adjacent to the Atlantic Oce while
ril2aria refers to land w irh 13grriess +hn ct ta'c cnnneic riyer.� This
distinction should be kept in mind throughout the following discussion.
The topic of riparian rights is very broad, encompassing such issues as water
pollution (reasonable and unreasonable uses); consumptive uses (extraction of water
for drinking, irrigation etc.) and non -consumptive uses (use of the water for access,
navigation, etc.) The focus of this paper is on riparian rights as applied to
non -consumptive uses within North Carolina's coastal area.
II. Increasing Demands for use of North Carolina's Coastal Waters
In the last 25 years, North Carolina's coastal area has witnessed unprecedented
development. Among the reasons are the state's mild climate, beautiful beaches,
fishery resources and relatively inexpensive land values. With development has
come economic opportunity and, unfortunately, stress on the state's coastal resources
including the waters of its ocean, sounds and rivers.
There is greater demand for access to coastal waters. To accomodate this
demand there has been an increase in shoreline development including an increase
in marinas, docks and piers. At the same time there are more people wanting to use
the state's public trust waters. Policy -makers are being confronted with having to
devise ways to balance the private rights of riparian owners with the rights of
other private and public users of the state's waters.
Because of the uncertainties involved in finding an equitable balance between
the various users of the state's coastal waters, it is important for practitioners to
understand the existing law of riparian and littoral rights.
VI-A-1

1. The Riparian Use Area
By statute, he state of North Carolina limits the offshore use (buildable) area
available to the riparian owner to only the front of the riparian tract. G.S. 146-12.
State case law and administrative law further provide that areas of riparian
access are to be determined by drawing a line along the channel at deep water in
front of the properties, then by drawing a line perpendicular to the line of the
channel so that it intersects with the shore at the point the upland property meets
the water's edge. O'Neal v. Rollinson, 212 N.C. 83,192 S.E 688 (1937) and 15 NCAC
07H .0208 (b)(6)(E) - this section of the administrative code is only applicable to
areas covered by North Carolina's Coastal Area Management Act (CAMA).
Riparian owners often mistakenly determine their riparian use area by
extending their property lines straight into the water from the point where their
upland boundaries intersect with the shoreline. The correct and incorrect methods
are illustrated below.
DEEP WATER
CHANNEL
I90 90.1 !
r
� I 1
I RIPARIAN
I USE
� i
IMPROPERLY AREA / PROPERLY
EXTENDED --+\I �-- EXTENDED
LINE LINE
I,
SHORELINE
2. Restrictions Within the Riparian Use Area
Because activities in the riparian area can have an impact on other private and
public rights, the law places restrictions on how some access related activities can
be exercised. A few of these restrictions are discussed below.
VI-A-3

r�,�zc. Restrictions to Protect the Public's Right of
Navigation and Other Public Trust Rights in
the State's Waters
The power of the federal government to regulate commerce includes the power to
regulate and improve navigation. U.S. Const. Art. I, Section 8, cl. 3 and US v.
Coombs, 37 U.S. 72 (1838). The rights of riparian owners adjacent to navigable
waters are subservient to this power. Greenleaf Tohnson Lumber Co. v. Garrison, 237
U.S. 251, 35 S. Ct. 551 (1915). The federal government may cause the removal of any
structure erected by a riparian owner which is injurious to navigation. Continental
Land Co. v. U.S., 88 F.2d 104, cert. denied 302 U.S. 715,58 S. Ct. 36(1937).
The protection of navigation from unreasonable interferences from riparian
owners is also found at the state level. North Carolina General Statute 146-12
explicitly states that any easement granted to riparian owners shall in no respect
obstruct or impair navigation. The statute prohibits easements from extending
further than the deep water line and restricts them to the front of the tract owned
by the riparian owner. Regarding piers, docks and marinas this statutory provision
has had little effect since the state Department of Administration has not required
easements in these cases.
In areas that come within the jurisdiction of the North Carolina Coastal Area
Management Act (CAMA), there are additional restrictions designed to protect and
enhance navigation. The jurisdiction of CAMA includes all estuarine waters as
defined by G.S.113A-113(b)(2). This includes all the waters of the bays, sounds,
rivers, and tributaries up to the dividing line between coastal fishing waters and
inland fishing waters as set forth in an agreement between the Wildlife Resources
Commission and the Department of Environment, Health and Natural Resources.
Projects are considered incompatible with the management policies of CAMA if
they directly or indirectly block or impair existing navigation channels. Under
CAMA piers are not allowed to extend beyond the general pier line for the same
shoreline, to extend into the channel portion of a waterbody and cannot extend more
than one-third of the width of a natural waterbody, man-made canal or basin. 15
NCAC 07H .0208(b)(6)(C).
Once a pier is constructed the riparian owner may still be required to allow the
public reasonable access to waters in close proximity to the structure. One North
Carolina case states that a waterfront owner may not interfer with the use of
waters beneath a pier when such waters are being used as a means of passage by
water craft in a manner that involves no contact with the pier. Capune v. Robbins,
273 N.C. 581,160 S.E. 2d 881, (1968) - In this case the interference was from a bottle
hurled at a surfer passing under a pier. Howev , the are statutory and
regulatory provisions designed to protect ripa an and ttoral owners from
conflicting public trust uses. For example, G 113-18 akes it unlawful (except for
VI-A-S

Excavation of navigation channels, canals or boat basins, are not permitted in
primary nursery areas, areas of highly productive shellfish beds, beds of submerged
vegetation or in significant areas of regularly or irregularly flooded coastal
wetlands. 15 NCAC 07H .0208(b)(1). Narrow fringes of coastal wetland may be
excavated for access purposes but only if it is determined that the excavation will
not have significant adverse impacts on fishery resources, water quality or adjacent
wetlands and that there is no reasonable alternative that would avoid the wetland
loss. 15 NCAC 07H .0208(b)(1)(A).
To preclude the adverse effects of shading coastal wetlands vegetation, docks
and piers built over wetlands cannot exceed six feet in width. Platforms and 'T"s
associated with residential piers must be at the waterward end of the pier and
cannot exceed a total area of 500 square feet. 15 NCAC 07H .0208(b)(6)(B).
B. Right to Property Resulting From Accretion and the
t to
Lost to Erosion
Accretion is the addition of soil to land by gradual, natural deposits.
Accreted land becomes the property of the adjacent riparian owner. Several
reasons are commonly advanced to support this rule: (1) he who sustains the
burden of losses and of repairs imposed by the contiguity of waters ought to
receive whatever benefits they may bring by accretion; (2) it is in the interest of
the community that all land have an owner; and (3) the necessity of preserving
the riparian right of access (Tarlock, D., Law of Water Rights and Resources,
Clark Boardman Co. Ltd. (1989) .
North Carolina General Statute-6(a) ovides that anv land, which by
process of na S i rin,,ijlf nf jettyor breakwater, is raised above the
h,a}i water mark of inv_navicrahle water. belongs to t e rivarlan owner.
In North Carolina this principle applies to riparian and littoral owners. However,
exclusive private use of accreted littoral (oceanfront) land may be limited by the
public's interest in the continued use and enjoyment of the dry sand beach (that area
of the oceanfront beach between the mean high tide and the vegetation line).
In North Carolina, land created artifically from soil or other fill material being
placed below the mean high water mark, becomes the property of the state. G.S.
146-6(b). All land below navigable water (with one exception) is held in trust by
the state and consequently any taking of this property, by other than natural
processes, subjects the property to state ownership. The exception involves tidal
land that was deeded away by the State Board of Education in the 1920s and 1930s.
Title to land that was raised from these submerged lands does not vest in the state
but remains in private ownership (for an informative article related to the Board of
Education deeds and the public trust see, McLawhorn, D., In Defense of Public Trust
Resources, LEGAL TIDES, Vol. 1, No. 1, UNC Sea Grant,1986).
VI-A-7

C. Other Riparian Rights
A riparian owner has a right to the recreational and scenic use of the water.
Springer v. Toseph Schlitz Brewing Co., 510 F.2d 468 (1975). Unlike the other
specific rights discussed above, these rights are not exclusive. For instance, the
ownership of land along navigable waters does not give its owner the exclusive
right to fish in the offshore waters. Bell v. Smith,171 N.C. 116,87 S.E. 987 (1916).
The riparian owner has a right to fish but it is a right that must be shared with
other users of the public trust. The same is true for swimming, skiing and other
forms of recreation.
VI. Conclusion
As waterfront development continues, riparian property owners will find it
increasingly important to know and understand their rights. The legislature, the
state commissions and the courts, will continue to search for equiable ways to
balance the rights of riparian owners with the rights of other users of the public
trust.
VI-A-9

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>I am sorry that I've not contacted you sooner. I am not sure that
>these violations fall within your responsibilities as a Facilitor for
>Coastal Management. If not, where do we go for help and how
>do we expose these violations?
>Your attention is appreciated.
>Brownie B. Trainham
>7021 Archers Creek Drive
>Emerald Isle, NC 28594
>e-mail: [e-mail]
Consensus Solutions, Inc...
... decisions we can agree on.
Adam R. Saslow
President
Consensus Solutions, Incorporated
400 Perimeter Center Terrace, NE
Suite 900
Atlanta, GA 30346-1260
770.392.4265 (0)
770.392.4266 (Fax... please call if the fax line is busy)

Author: Charles Jones at NROBA03P
Date: 4/28/99 5:25 PM
Priority: Normal
TO: Tere Barrett
TO: Ted Tyndall
Subject: Re: Cama Violations on Emerald Isle, NC
-------------------------------- Message Contents---------------------------------
Tere, do you anything about this?
Subject: Re: Cama
Author: "Adam R.
Date: 4/27/99
Ms. Trainham -
Forward Header
Violations on Emerald Isle, NC
Saslow" <[e-mail]>
1:48 PM
Thanks for your note...
at Internet
Yes... I am still heavily involved in establishing a fair and equitable
process for determining which combnination of statutory, regulatory,
vouluntary and other "tools" should be used to protect the estuarian
coastal resource into the 21st century. This effort would include Bogue
Sound.
Unfortunately, my responsibilities do NOT put me in a position where I can
help you out with your concerns. What I can do is try to ut you in touch
with the right people. I am forwarding this note to Mr. Charles Jones of
DENR/DCM.
I know Charles well and assure you that he will make every effort to get to
the bottom of this.
Best regards,
ARS
At 08:43 AM 4/23/99 -0400, you wrote:
>Mr. Saslow are you still involved with coastal resource protection
>here on Emerald Isle? Does coastal resource protection include
>the sound side of Bogue Banks? There are on -going serious
>violations of CAMA rules and regulations, obviously by someone >high
up in CAMA, here on our island which is surely and slowly being
>destroyed by these "exceptions to the rules" because the violator
>knows some CAMA official. Please come look at one of these
>"exceptions" at the end of Sound Drive on the Bogue Sound side.
>It is a travesty! If one violator can build a bulkhead, all four sides,
>in the water and wetlands creating a little island accessed by a
>built-up driveway, using property adjoining and belonging to some -
>one else for a septic system, fill the bulkhead in with loads and
>loads of dirt, isn't is possible for anyone to do the same thing all
>along the sound front of Emerald Isle. Wetlands are being filled >in
all the time. Up the street from the new metal -bulkhead island >is a
wetlands lot that has been filled in with, at last count, over >225
loads of soil. My own neighbors, built their house close to the
>water, built a bulkhead 30 feet out and filled in with soil to meet
>regulations. Many lots are stripped of all the trees and foliage and
>filled in with soil along the water front. In the 14 years we have owned
>our property, the drainage system has completely changed
>causing flooding everytime we have a storm or heavy rain.

Consensus Solutions, Inc...
... decisions we can agree on.
Adam R. Saslow
President
Consensus Solutions, Incorporated
400 Perimeter Center Terrace, NE
Suite 900
Atlanta, GA 30346-1260
770.392.4265 (0)
770.392.4266 (Fax... please call if the fax line is busy)

Author: Charles Jones at NROBA03P
Date: 4/28/99 5:57 PM
Priority: Normal
TO: "Adam R. Saslow" <[e-mail]> at Internet
CC: Tere Barrett
CC: Ted Tyndall
Subject: Re: Note from a Stranger
-------------------------------- Message Contents ---------------------------------
Adam, I don't know what these folks are talking about yet. I've asked our
Morehead City staff to look into the matter and we will advise shortly.
Reply Separator
Subject: Note from a Stranger
Author: "Adam R. Saslow" <[e-mail]>
Date: 4/26/99 8:13 PM
Charles -
Can you help her out???
ARS
Mr. Saslow -
at Internet
I am writing to find the name of the CAMA official who signed on the
created lot between 7000 Sound Dr. and 7002 Sound Dr.
At my initial hearing that this lot (?) had been declared buildable by CAMA,
I called the CAMA office in Morehead to appeal this ruling ,and was told by
a very nice gentleman that this was not something that he had signed on,
that it was done by someone "over his head and that he could not make
waves". I was and am saddened by this and realize as I did then, that this
is larger than I am. I also was not aware of the rule that if CAMA approves
a lot that the city will give a building permit. I am a person who lives by
common sense and assumed the city would not give a permit to an area that
had been under water several times a year since Noah was a little boy. I am
simply curious as to the person's name and position who signed this permit.
Were you to see this area I'm certain that you would be surprized as we in
the area are.
Mr. Royall's home located on the end of Emerald Isle was an exception to
rules created to protect us and the environment and that has not proven to
be in the best interest of anyone. The sea is about to undo that poor
decision.
Thank you so much for your input on this inquiry. I look forward to your
reply.
Sincerely,
Cynthia Canipe
7002 Sound Dr.
Emerald Isle, NC 28594
[e-mail]

Environmental violation
Emerald Isle, N.C.
April 23, 1999
TO THE EDITOR:
If anyone is interested in seeing a seri-
ous violation of every zoning, coastal
management and wetlands regulation,
please come to the east end of Sound
Drive on Emerald Isle and see what
someone is being allowed to build. Ru-
mors abound that some official in
CAMA has made an "exception" to the
rules for a friend, and that a CAMA per-
mit to build supersedes all other zoning
and wetland rules so Emerald Isle offi-
cials have no choice except to allow the
building of a bulkhead island off the
point of Sound Drive where we once
picked up scallops in the water.
Heaven forbid that now anyone can
build a fully -enclosed bulkhead in wet-
lands, build a ramp to get onto the is-
land, use a neighbor's land for a septic
system, fill in the bulkhead with many
loads of soil and perhaps proceed to
build a house on the man-made lot. This
violation needs to be stopped before the
house is built.
This "exception" is just one of many
exceptions being made on waterfront
property. Is there anyone in North Caro-
lina government who cares what is hap-
pening here on Bogue Banks?
BROWNIE B. TRAINHAM

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N 69°/5' 15"Hf l 22. 35' MARSH
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