[From the U.S. Government Printing Office, www.gpo.gov]










            NORTH CAROLINA9S
                      OCEAN
           STEWARDSHIP AREA:
           A Management'Stud
                                        y








                                                                             ... .... .............. .












                                                 .... .......

















                                                            A REPORT OF THE


                                                          STRATEGIC PLAN
                                                                   FOR
                                              IMPROVING COASTAL MANAGEMENT
                                                                    IN
                                                          NORTH CAROLINA



                    Performed Under the Coastal Zone Enhancement Grants Program

                                        Division of Coastal Management
                      North Carolina Department of Environment, Health and Natural Resources





















































                                COVER GRAPHIC: This GIS map of the North Carolina Coastal Area shows
                                boundaries of counties and small watersheds, or hydrologic units.   These
                                hydrologic units are the focus of analytical and planning components of the
                                St@ategic Plan for Improving Coastal Management in North Carolina.













                                  NORTH CAROLINA'S OCEAN STEWARDSHIP AREA:
                                                       A MANAGEMENT STUDY






                                                                 Walter F. Clark
                                                      Ocean and Coastal Law Specialist
                                                 North Carolina Sea Grant College Program

                                                                        and


                                                              Steven E. Whitesell
                                                               Research Assistant
                                                 North Carolina Sea Grant College Program


                                                                   July 1, 1994


                      The preparation of this report was financed through a contract by the North Carolina Division of Coastal
                      Management with the North Carolina Sea Grant College Program through funds provided by the
                      Off ice of Ocean and Coastal Resources Management, NOAA, under the Coastal Zone Enhancement
                      Grants Program. The views expressed herein are those of the authors and do not necessarily reflect
                      the views of NOAA or any of its subagencies or those of the North Carolina Department of Environ-
                      ment, Health and Natural Resources.














                      A publication of the North Carolina Department of Environment, Health and Natural Resources pursuant
                      to National Oceanic and Atmospheric Administration Award No. NA270ZO332-01.



          @a'
                                                                  Z4










                                                     TABLE OF CONTENTS





                Section                                                                                       PAge

                I .      INTRODUCTION        ...............................................                    1


                2.       OCEAN JURISDICTION           .........................................                 3


                                 Territorial Boundaries  .........................................              3
                                 Legal/Regulatory Jurisdiction   ...................................            4

                3.       COASTAL MANAGEMENT AND OTHER CONSTANT THEMES
                         IN OCEAN MANAGEMENT             .......................................                9


                                 Coastal Zone Management       ....................................             9
                                 The Public Trust Doctrine   ......................................             14
                                 Federal and State Law Regulating Water Quality       ...................       15
                                 The National and State Environmental Policy Acts      ...................      15
                                 Endangered Species and Marine Mammals          .......................         17

                4.       EXTRACTION OF SOLID MINERALS                ...............................            23


                                 Extraction of Solid Minerals in State Waters   .......................         24
                                 Mineral Extraction in Federal Waters    .............................          28


                S.       OIL AND GAS ACTIVITIES          .......................................                31


                                 Jurisdiction  .................................................                32
                                 Leasing Procedures     ..........................................              32
                                 Exploration, Development and Production of Oil and Gas
                                 in Federal Waters   ............................................               34
                                 Exploration, Development and Production of Oil and Gas
                                 in State Waters   ..............................................               37













                    Section                                                                                  Page

                    6.      OCEAN FISHERIES MANAGEMENT               ...............................          43


                                   Jurisdiction - Local and State .......................                     44
                                   The Marine Fisheries Commission and Division of Marine Fisheries     ..... 44
                                   State Fisheries Management     ...................................         46
                                   Interjurisdictional State Fisheries Management  .....................      50
                                   Federal Fisheries Management     .................................         51

                    7.      MARINE POLLUTION         ............................................             67


                                   Ocean Outfalls for Domestic Wastewater     ..........................      57
                                   Ocean Dumping and Marine Litter     ...............................        59

                    8.      RECREATIONAL USES          ..........................................             65

                                   Recreational Boating   .........................................           66
                                   Surfing, Swimming, Skiing and Scuba Diving    .......................      67
                                   Recreational Fishing   ..........................................          67

                    9.      MARINE PROTECTED AREAS             ....................................           69

                                   Marine Protection, Research and Sanctuaries Act    ...................     69
                                   Abandoned Shipwrecks,- Special Archaeological Sites      ..............    72
                                   CAMA and Natural and Cultural Resource Areas      ....................     75










                                                           ACKNOWLEDGMENTS



                                I want to thank Dr. B.J. Copeland and Dr. James Murray, North Carolina Sea Grant College
                       Program, for their support, patience and understanding. This project took more time and energy than
                       any of us anticipated.

                                I also want to extend special thanks to Kim Crawford, Division of Coastal Management, for
                       her guidance and knowledge. I am also most grateful to Jeannie Faris, North Carolina Sea Grant, for
                       her skill and patience in editing what must, at times, have seemed like an endless sea of legalese.

                                I am grateful to Steve Whitesell, my project research assi stant, for the hours he spent in the
                       summer of 1993 studying federal and state statutes and regulations. He did an excellentjob of making
                       sense of the maze of policy and law applicable to North Carolina's ocean stewardship area.

                                I want to extend special thanks to the Ocean Resources Task Force for collectively and indi-
                       vidually providing insight into the many different aspects of ocean management. It is my hope that
                       the results of this study will be a positive force in completing the Ocean Resources Plan - the ultimate
                       goal of this project.

                                Finally, I am forever grateful to my father, Foy Clark, for his wisdom and the insight he
                       continues to share with me regarding fairness and stewardship.










                                                                                          In 1984, North Carolina published "North
                                                                                   arolina and the Sea: An Ocean Policy Analysis."
                                                                                 T
                                                                                    is report was the first in a long line of ocean
                                                                                   h
                                                                                    licy reports produced by maritime states around
                                                                                 po
                                                                                 the country. [1] The N.C. Marine Science Council
                                                                                 issued the report recognizing a trend in the early
                                                                                 1980s "toward a more independent and certainly
                                                                                 less federally financed role (in ocean and coastal
                                                                                 management) for states." [2] As a result of that
                                                                                 trend, the council felt that "it behooves the states
                                                                                 to pursue their own independent analysis of their
                                                                                 individual and collective policy relationships to
                                                                                 ocean and coastal issues, not only for their own
                                                                                 benefit but also to prepare their contributions for
                                                                                 future federal-state dialogues." Almost 10 years
                                                                                 have passed since "North Carolina and the Sea"
                                                                                 was printed, and many of the issues that spawned
                                                                                 the publication remain unaddressed.

                                                                                          It was these unaddressed issues and an
                                                                                 entirely new set ofissues that led the N.C. Division
                                                                                 of Coastal Management to recommend ocean re-
                                                                                 sources planning as a priority area for funding and
                                                                                 study under the federal Coastal Zone Management
                                                                                 Act's Enhancement Grants Program. In 1990, the
                                                                                 U.S. Congress amended the Coastal Zone Manage-
                                                                                 ment Act to provide funding to states with feder-
                                                                                 ally approved coastal management programs to
                                                                                 examine means of better managing issues of na-
                                                                                 tional importance. [31 Of the eight issues listed in
                                                                                 the program guidelines, North Carolina identified
                                                                                 four as priority areas for funding and research:
                                                                                 wetlands; cumulative and secondary impacts of
                                                                                 development; special area management planning;
                                                                                 and ocean resources planning. [41 To fulfill the
                                                                                 ocean resources planning requirements under the
                                                                                 Enhancement Grants Program, the Division of
                                                                                 Coastal Management developed a work plan in
                                                                                 cooperation with the former Office of Marine Af-
                                                                                 fairs. One component of the plan is the ocean
                                                                                 management study presented in this document.

                                                                                          The purpose of this study is to analyze
                                                                                 North Carolina's current ocean management re-
                                                                                 gime and identify deficiencies that should be ad-
                                                                                 dressed by the ocean management plan. To that
                                                                                 end, six study areas were identified as important
                                                                                 because they involve marine resources and/or uses
                                                                                 that are likely to be at issue. These areas include:
                                                                                 (a) the extraction ofsolid minerals from the seabed;
                                                                                 (b) oil and gas exploration and exploitation; (c)
                                                                                 marine fisheries management; (d) the discharge of
                                                                                 pollutants into the marine environment from ocean
                                                                                 outfalls, ocean dumping and littering; (e) recre-
                                                                                 ational uses of the marine environment; and (f)
                                                                                 marine protected areas, including archeological
                                                                                 sites and ecological preserves.



                                                                                              Ocean Resources Planning - Page 1










                     The management study encompasses
            North Carolina's ocean stewardship area. This
            includes the Atlantic Ocean and lands thereunder
            from mean high tide oceanward to the end of the
            200-mile Exclusive Economic Zone.


                     The ocean stewardship area was defined
            by the Ocean Resources Task Force. It is the
            ultimate responsibility of the task force to assist
            the Division of Coastal Management in developing
            the Ocean Resources Plan [see Appendix 1 for a list
            of task force members]. In the interim, the task
            force will review the recommendations presented
            in this report.

                     The second section of the report outlines
            the jurisdictions found in North Carolina's coastal
            ocean. Section 3 discusses some basic and constant
            themes as a foundation for analyzing the study
            areas. Sections 4 through 9 discuss the six study
            areas in detail.


                     Each section concludes with recommenda-
            tions for action, which grew from areas where the
            current management regime is either unclear or
            deficient. They should serve as a catalyst for dis-
            cussion and a basis for final recommendations in
            the Ocean Resources Plan.


            Footnotes

            [11 Ocean policy reports have been produced in
            Oregon, Maine, Hawaii, Mississippi and Florida.
            California is developing a plan that will be com-
            pleted in July 1994.

            [21 Much of the work originally undertaken by the
            Marine Science Council was later shifted to the
            state's Ocean Affairs Council. The Ocean Affairs
            Council was abolished by the N.C. Legislature in
            1993, and many of its responsibilities have since
            been given to the N.C. Division of Coastal Manage-
            ment in the Department of Environment, Health
            and Natural Resources.


            [31 16 U.S.C.A. 1456b(a).

            [4] The other four areas are: management of dev-
            elopment in high-hazard areas, public access, con-
            trol of marine debris and siting of coastal energy
            and governmental facilities.









            Ocean Resources Planning - Page 2









                                                                                              For purposes of this discussion, ocean ju-
                                                                                      risdiction is divided into two parts. The first part is
                                                                                      a brief description of offshore territorial bound-
                                                                                      a
                                                                                      ries. It focuses on the level ofgovernment (state or
                                                                                      federal) that owns the submerged lands and natu-
                                                                                      ral resources off North Carolina's shoreline. The
                                                  ....... .......
                                                                                      second part, legal/regulatory jurisdiction, is a gen-
                                                                                      eral discussion of the level of government (local,
                                                                                      state or federal) that has the power to regulate
                                                                                      activities in the ocean regardless of territorial
                                                                                      ownership. These jurisdictions are included in a
                                                                                      map at the end of this section.

                                                                                      Territorial Boundaries


                                                                                              State and federal territorial boundaries
                                                                                      have been clarified and established by two actions
                                                                                       the passage of the federal Submerged Lands Act
                                                                                      in 1953 and the Territorial Sea Proclamation is-
                                                                                      sued by President Reagan in 1988. The Submerged
                                                                                      Lands Act granted to coastal states the ownership
                                                                                      of submerged lands and natural resources to a
                                                                                      point three miles off their coasts. [11 In North
                                                                                      Carolina, state ownership begins at the mean high
                                                                                      tide line. 121 Consequently, the tidal zone and the
                                                                                      submerged land in the Atlantic Ocean out to three
                                                                                      miles are state-owned, with all state laws applying
                                                                                      as though the area were dry land. [3] North
                                                                                      Carolina's lateral seaward boundaries - between
                                                                                      its territorial sea and the waters of South Carolina
                                                                                      and Virginia - are determined by statute. [41

                                                                                              In 1988, President Reagan proclaimed a
                       ET                                                             12-mile territorial sea for the United States. [51
                                                                                      The consequence of this action was to extend U.S.
                                                                                      territory into the adjacent oceans to 12 miles. The
                                                                                      president's proclamation contained a disclaimer
                                                                                      indicating that it does not extend or otherwise alter
                                                                                      "existing federal or state law or any jurisdiction,
                                                                                      rights, legal interests or obligations derived there-
                                                                                      from." This disclaimer allows the president to as-
                                                                                      sert U.S. sovereignty out to 12 miles for interna-
                                                                                      tional purposes yet retain the three-mile limit for
                                                                                      all domestic laws and regulations. Although the
                                                                                      intent of the disclaimer and the Submerged Lands
                                                                                      Act of 1953 is to limit state ownership of sub-
                                                                                      merged lands to a distance ofthree miles, there are
                                                                                      questions regarding the president's legal authority
                                                                                      to limit the proclamation exclusively to foreign
                                                                                      affidrs. Some legal scholars contend that the states
                                                                                      may have extended claims resulting from the proc-
                                                                                      lamation. [61 This issue will likely remain unset-
                                                                                      tled until it is clarified by presidential, congres-
                                                                                      sional or judicial action. [71

                                                                                              In 1991, the N.C. Marine Science Council
                                                                                      prepared a report examining the advantages and


                                                                                                   Ocean Resources Planning - Page 3









             disadvantages of extended state ownership and                     Rights of the Federal Government in
             control of resources in the territory three to 12                  Waters Beyond the Territorial Sea
             miles out to sea. The report concluded that "seek-
             ing ... an extension of state jurisdiction would not,                 Though not territorial in nature, the fed-
             at this time, be in the best interests of the state."         eral government's regulatory jurisdiction extends
             North Carolina may want to revisit the conclusions            beyond the 12-mile territorial sea. From that point
             of that report as it develops the Ocean Resources             oceanward to 24 miles is the Contiguous Zone.
             Plan [see Appendix 2 for a copy].                             Within this zone, the United States controls cus-
                                                                           toms, rights of passage, health regulations, mili-
             Legal/Regulatoa Jurisdiction                                  tary activities and navigation. The United States
                                                                           and most other maritime countries claim an Exclu-
                     Although territorial boundaries      are im-          sive Economic Zone that extends 200 nautical
             portant in determining legal and regulatory juris-            miles as measured from the mean low tide. [81
             diction, other factors have weight in ascertaining            Within this zone, the United States has sovereign
             what level of government will broker ocean man-               rights to explore, exploit, conserve and manage
             agement. Some of these factors are discussed.                 natural resources, both living and nonliving, ofthe
                                                                           seabed, subsoil and overlying waters. The ocean
                   Paramount Rights of the Federal                         beyond 200 nautical miles is the high seas to which
                 Government in all Territorial Waters                      international law applies. [91
                     The federal government has certain para-               State Rights in the Federal Territorial Sea
             mount rights in all waters of the United States                       and Exclusive Economic Zone
             (including waters within the boundaries of state
             territory). These are rights, grounded in the com-                    Even though state territorial rights in the
             merce and property clauses of the Constitution, to            ocean end at three miles, adjacent coastal states do
             regulate U.S. waters for the purposes of naviga-              have some regulatory power in the federal territo-
             tion, commerce, national defense and international            rial sea and the Exclusive Economic Zone. The
             affairs. Consequently, many laws passed by the                most powerful of these rights - the consistency
             U.S. Congress apply to North Carolina's ocean                 determination - was given to coastal states by
             waters - the most notable ofthese being the Clean             Section 307 of the federal Coastal Zone Manage-
             Water Act, Rivers and Harbors Act; Coastal Zone               ment Act of 1972. [10]
             Management Act; Endangered Species Act; Ma-
             rine Mammal Protection Act; Marine Protection,                        Under Section 307, activities in federal
             Research and Sanctuaries Act; Abandoned Ship-                 ocean waters (such as the proposed Mobil Oil
             wreck Act; and, to some degree, the Magnuson                  project) that affect any natural resource, land or
             Fishery Conservation and Management Act (Mag-                 water use in the coastal zone of an adjacent state
             nuson Act). These laws are generally administered             (with an approved coastal zone management pro-
             by federal agencies, but occasionally the federal             gram) must be consistent with the enforceable
             government delegates its authority to individual              policies of that state's coastal management pro-
             states. For example, the Clean Water Act allows               gram. Failure to satisfy this consistency require-
             the U.S. Environmental Protection Agency (EPA)                ment can cause federal permits or licenses to be
             to delegate water quality responsibilities to states          denied. The consistency requirement, thereby, gives
             with programs that meet federal guidelines. In                a coastal state the tool to influence permitting in
             1974, EPA gave North Carolina the authority to                federal waters. The power of this tool, however,
             coordinate its own water quality management pro-              depends largely on the strength of the state's
             gram.                                                         enforceable policies in its own coastal ocean.

                     The federal government also has the power                     Enforceable policies are defined by federal
             to enter into international agreements or treaties            regulation as "state policies that are legally bind-
             with other governments. The responsibilities and              ing through constitutional provisions, laws, regu-
             obligations flowing from these treaties can apply to          lations, land-use plans, ordinances orjudicial deci-
             state and federal waters. For example, the Inter-             sions by which a state exerts control over private
             national Convention for the Prevention of Pollu-              and public land and water uses and natural re-
             tion from Ships (MARPOL Annex V) prohibits the                sources in the coastal zone." [111
             overboard discharge of plastics from ships in all
             ocean waters, including North Carolina's marginal                     In addition to the consistency require-
             sea.                                                          ment, coastal states may have some limited au-


             Ocean Resources Planning - Page 4









                      thority to manage fisheries in the federal territo-             intent to provide a complete and integrated regu-
                      rial sea and Exclusive Economic Zone. The Magnu-                latory scheme to the exclusion of local legislation."
                      son Act gives states a limited right to regulate                [13] In matters related to'the Atlantic Ocean,
                      fishing vessels registered in the state and operat-             federal and state governments often have a regula-
                      ing in federal waters. However, from a practical                tory scheme in place, though it can be argued that
                      standpoint, states seldom have the resources to                 such schemes are "complete and integrated." Such
                      manage fisheries beyond their jurisdictions.                    schemes take precedence, however, particularly
                                                                                      when they exclude local government participation.
                            Rights of Local Governments in                            For example, the General Assembly in 1965 abol-
                                  State Territorial Waters                            ished all local fishing acts, declaring that "the
                                                                                      enjoyment of the marine and estuarine resources
                               As conflicts in the nearshore waters of the            of the state belongs to the people of the state as a
                      Atlantic Ocean have increased, so has the desire of             whole and is not properly the subject of local
                      local governments to regulate solutions. Both county            regulation." [141
                      and municipal governments have expressed inter-
                      est in regulating activities such as jet skiing, surf-                   Ordinances passed by local governments
                      ing, littering, advertising by floating billboards              under the state's broad enabling legislation apply
                      and, most recently, the menhaden fishery. But                   only within their jurisdictional boundaries. The
                      without specific grants of power from the state                 seaward boundaries of some local governments
                      Legislature, local government is powerless to regu-             have, at times, been at issue. There have been
                      late activities on land or in the coastal ocean.                attempts by some local governments to regulate
                                                                                      activities in the ocean under general enabling
                               A grant of power from the Legislature to               legislation, although the charters of most littoral
                      local government is called enabling legislation.                counties and municipalities cite the Atlantic Ocean
                      The state has given both county and municipal                   as their eastern boundary. [151 Some legislative
                      governments broad powers. General Statute 153A-                 clarification of this issue would be helpful. Other-
                      121, the general enabling legislation for counties,             wise, local governments may continue to attempt
                      is very similar to the broad grant of power given to            to regulate nearshore activities through general
                      municipalities in GS 160A-174. GS 153A-121(a)                   enabling legislation, believing their jurisdiction
                      reads:                                                          extends into the ocean.
                               A county may by ordinance define,                               Because of the increase in nearshore con-
                               regulate, prohibit or abate acts,                      flicts and the lack of certainty about regulating
                               omissions or conditions detrimental                    ocean waters, local governments have, in some
                               to the health, safety or welfare of its                instances, been granted specific powers by the
                               citizens and the peace and dignity of                  General Assembly to manage activities beyond
                               the county; and may define and abate                   their boundaries. For example, the General As-
                               nuisances... .                                         sembly has given municipalities the right to regu-
                                                                                      late swimming, surfing and littering in the Atlan-
                               In addition to these broad grants ofpower,             tic Ocean "adjacent to that portion of the city
                      the Legislature occasionally grants county and                  within its boundaries or within its extraterritorial
                      municipal governments the right to regulate cer-                jurisdiction." [161 Also, some municipalities have
                      tain activities both within and adjacent to their               been given the power to regulate and control per-
                      boundaries. Specific enabling legislation is usually            sonal watercraft (jet skis). [17] Although the right
                      passed when local government and/or the General                 to regulate swimming, surfing and littering is
                      Assembly are unsure of the ability of local govern-             available to all municipalities in oceanfront coun-
                      ment to regulate through its broad general powers.              ties, the right to regulate personal watercraft only
                      For example, the General Assembly in 1983 passed                applies to those listed in the statute (Atlantic
                      a statute explicitly giving counties the right to               Beach, Carolina Beach, Caswell Beach, Emerald
                      regulate development over state public trust wa-                Isle, Holden Beach, Kitty Hawk, Long Beach, Nags
                      ters within their jurisdictional boundaries. [12]               Head, Ocean Isle Beach, Sunset Beach, Topsail
                                                                                      Beach, Wrightsville Beach and Yaupon Beach). It
                               Whether through its broad enabling legis-              is likely that more cities will be added as conflicts
                      lation or in response to specific laws, local govern-           increase. Amore detailed discussion ofboating and
                      ment is restrained from passing ordinances that                 boating safety will appear in Section 8. For now,
                      are inconsistent with state or federal law. For                 suffice it to say that local governments would
                      example, a city cannot regulate a subject "for which            benefit from legislative consistency regarding their
                      a state or federal statute clearly shows a legislative          ability to regulate activities in ocean waters.

                                                                                                    Ocean Resources Planning - Page 5









             Recommendations                                                Before the Submerged LandsActwas passed, there
                                                                            was some confusion about ownership of the three-
                      1. The task force may want to re-examine              mile margin. Prior to World War II, coastal states
             the conclusions of the report prepared by the N.C.             believed they had jurisdictional control over the
             Marine Science Council in 1991 [Appendix 21, even              territorial or marginal sea. The federal govern-
             though there does not appear at this time to be an             ment acquiesced in this belief, altered only by its
             advantage to extending the state territorial sea               supremacy powers. However, after World War II,
             from three to 12 miles.                                        the federal government had a change of heart. In a
                                                                            famous Supreme Court decision, United States v.
                      II. The jurisdictional boundaries of local            California, 332 U.S. 19 (1947), the court agreed
             governments should be clarified by statute as end-             with the federal government that the marginal sea
             ing at the Atlantic Ocean. Local governmental                  properly appertained to the United States in its
             boundaries should extend oceanward to the mean                 entirety. In providing rationale, the court empha-
             low tide line. This would give local governments               sized the need for uniformity and national secu-
             the ability to regulate activities on the wet and dry          rity. The Submerged Lands Act re-established. state
             sand beaches.                                                  ownership of the marginal sea.
                      III. The General Assembly should give                 [21 In some states, public ownership begins at
             local governments authority to regulate a broad                mean low tide, making the wet sand beach or the
             range of activities in the state's coastal ocean for a         foreshore privately owned. The foreshore is pri-
             distance no more than one mile seaward of the                  vately owned in Delaware, Maine, Massachusetts,
             mean low tide. This would extend local govern-                 New Hampshire, Pennsylvania and Virginia.
             ments'zoning and regulatory powers into the ocean.             [3] Even though North Carolina claims ownership
             This power must be consistent with state and                   of the foreshore below mean high tide, the eastern
             federal law. For example, local government may                 boundary of state territory is determined by mea-
             not regulate fishing activities in violation of GS             suring from the extreme low watermark, not from
             113-133. Local governments should have the au-                 the mean high tide line.
             thority to regulate activities such as jet skiing,             The N.C. Constitution and the General Statutes
             beach driving, surfing, swimming, advertising by               define the eastern boundary of the state as one
             floating billboards and commercial activities origi-           marine league eastward from the Atlantic sea-
             nating from the public beach and occurring in the              shore, measured from the extreme low watermark.
             one-mile regulatory zone.                                      Constitution of North Carolina, Art. 1, sec. 34 and
                                                                            GS 141-6(a). In English-speaking countries, a
                                                                            league is roughly three miles.
             Footnotes
                                                                            [41 GS 141-7.1 Southern lateral seaward boundary
             [11 Submerged Lands Act, 43 U.S.C. 1301 et seq.                with South Carolina. This act was approved by the
             Section 1311(a) of the act reads as follows:                   state of South Carolina and consented to by Con-
                                                                            gress.
                      It is determined and declared to be in                GS 141-8 Northern lateral seaward boundary with
                      the public interest that: (1) title to                Virginia. This act was approved by the state of
                      and ownership of the lands beneath                    Virginia and consented to by Congress.
                      waters within the boundaries of the
                      respective states and the natural re-                 [5] Presidential Proclamation # 5928 (Dec. 27,
                      sources with such lands and waters                    1988).
                      and (2) the right and power to man-
                      age, administer, lease, develop and                   [6] Many state and federal statutes contain some
                      use the said lands and natural re-                    reference to a territorial sea of an undefined width.
                      sources all in accordance with appli-                 "If the territory to which these statutes apply is
                      cable state law be, and they are,                     defined simply as the territorial sea, the statute
                      subject to the provisions hereof, rec-                could be interpreted to incorporate an expanded
                      ognized, confirmed, established and                   12-mile territorial sea rather than be limited to
                      vested in and assigned to the respec-                 three miles." Mississippi Ocean Policy Study, Mis-
                      tive states.                                          sissippi-Alabama Sea Grant Legal Program,
                                                                            MASGP-91-010.


             Ocean Resources Planning - Page 6










                     [71 In 1991, a legislative solution was attempted in          of this increased area, called extraterritorialjuris-
                     Congress. A bill was introduced that would have               diction, is dependent on the population of the city
                     extended all coastal states' jurisdiction over off-           in question. A city with a population between
                     shore lands and waters seaward to 12 nautical                 10,000 and 25,000 may increase its extraterritorial
                     miles. This would have been accomplished by                   jurisdiction to two miles. Those with a population
                     amending the Submerged Lands Act.                             greater than 25,000 may have an extraterritorial
                                                                                   jurisdiction of three miles. Some oceanfront mu-
                     [81 Presidential Proclamation # 5030 (March 10,               nicipalities have extended their extraterritorial
                     1983).                                                        jurisdictions into the Atlantic Ocean. For example,
                                                                                   Southern Shores and Nags Head have extraterri-
                     [91 The recent ratification of the Law of the Sea             torial jurisdiction extending one mile into the At-
                     Treaty may have an impact on the international                lantic.
                     management of the high seas. To date, manage-
                     ment of the high seas has been exercised through              [171 GS 160A-176.2. This section, in contrast to
                     bilateral or multilateral treaties or through cus-            160A-176.1, includes adjacent waterways in addi-
                     tomary international law.                                     tion to the Atlantic Ocean. The state's Boating
                                                                                   Safety Act, GS 75A-1 et seq., does contain the
                     [101 Section 307 of the federal Coastal Zone Man-             statutory authority for the state (Wildlife Resources
                     agement Act. 16 U.S.C.A. 1456(c)(1).                          Commission) to regulate jet skis that pose a sub-
                                                                                   stantial safety risk. To date, the commission has
                     [111 15 CFR 923.102(b)(1).                                    not regulated jet skis, perhaps because they are
                                                                                   more parochial than most other watercraft in the
                     [121 GS 153A-340.                                             territory they occupy. In other words, they are
                                                                                   typically nearshore recreational devices (such as
                     [131 GS 160A-174(b)(5). There is no comparable                surfboards) that appertain more readily to local
                     statute regarding county government, although                 control.
                     the courts have so limited county authority.

                     [141 GS 113-133. This statute does add some
                     confusion by stating that "nothing in this section is
                     intended to invalidate local legislation or local
                     ordinances that exercise valid powers over sub-
                     jects other than the conservation of marine and
                     estuarine resources, even though an incidental
                     effect may consist of an overlapping or conflict of
                     jurisdiction as to some particular provision not
                     essential to the conservation objectives set out in
                     this subchapter." (emphasis added)

                     [151 Presumably, local government boundaries
                     end at the mean high tide line since this is where
                     state ownership begins. However, research into
                     the session laws of North Carolina has found that
                     Nags Head, Holden Beach, Carolina Beach, Surf
                     City, Topsail Beach and Wrightsville Beach all
                     defined their eastern boundary as either the edge
                     or the low watermark of the Atlantic Ocean.

                     [161 GS 160A-176.1. This section applies to cities
                     in the counties of Brunswick, Carteret, Currituck,
                     Dare, Hyde, New Hanover, Onslow and Pender.
                     This includes all of the counties that abut the
                     Atlantic Ocean.

                     GS 160A-360 permits municipalities to increase
                     their jurisdiction for the purposes of regulating
                     development, such as zoning and land use. The size



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           Ocean Resources Planning - Page a
                                                                                                                             I
















                                                      -------------



                                                                                              ONA
                                                                                     INTERNATIONA

                                                                    NATIONAL INTERESTS


                                                           PEDERAL LAWS AND   REGULATIONS
                                                           (APOICable to Terrestrial, Fresh Water,
                                                           and Marine Ames):
                                                              COMM Zang Management Act (CZtAA)
                                                              Cwn' W'qter Act
                                                              endangered 's.pe
                                                                            CW  Act
                                                                      FnWro
                                                                                  p
                                                                                   alley Act
                                                                At
                                                                       Odhe     ULAT10ft
                                                         14        4ftw,
                                                           %r
                                                          oil his. Pf
                                                                  we    Prot
                                                         J%ho    ?% ction   sonon
                                                         Atj fies   .4of  17ft   Act
                                                            no-                   4117d
                                                          MAL
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                                           76



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                                                N.









                                                                                    Introduction
                                                    'A
                         [email protected]"@'MAN,..,.GElvi.ENT.'.'                          This chapter reviews North Carolina's
                                             ........ ..
                                                                                    coastal management program with an eye toward
                                    Ot 1411tONS
                                                                                    its capacity to manage activities in the state's
                             HE      I
                                                                                    0
                                                                                    cean stewardship area. North Carolina's program
                                                                                    is broad and has significant power over develop-
                                                    . .... . . .
                                                     ..... .. . . .
                                                                                    ment activities proposed for state jurisdictional
                                  E:
                                                                                    waters. It also has the power to influence proposed
                                                                                    activities in federal ocean waters through the con-
                                                                                    sistency provision ofthe federal Coastal Zone Man-
                                                                                    agement Act.

                                                                                            Also reviewed in this chapter are the many
                                                                                    constant legal themes that are integral to the
                                                                                    regulatory structure for activities discussed in
                                                                                    later chapters. These themes include the public
                                                                                    trust doctrine and its embodiment in state legisla-
                                                                                    tion, state and federal water quality laws, the
                                                                                    State and National Environmental Policy Acts,
                                                                                    and state and federal law protecting endangered
                                                                                    species and marine mammals.

                                                                                    Coastal Zone Management

                                                                                            The federal Coastal Zone Management
                                                                                    Act was passed in 1972. Its intent is "to preserve,
                                                                                    protect, develop and, where possible, to restore or
                                                                                    enhance the resources of the nation's coastal zone
                                                                                    for this and succeeding generations." [11 The act
                                                                                    encouraged state coastal management programs
                                                                                    by offering federal funding for their development
                       ET                                                           and administration. The act also offered states
                                                                                    with a federally approved program the opportunity
                                                                                    to influence activities proposed for federal waters
                                                                                    through its consistency provision. The Coastal
                                                                                    Zone Management Act is implemented by the Of-
                                                                                    fice of Ocean and Coastal Resources Management
                                                                                    within the U.S. Department of Commerce's Na-
                                                                                    tional Oceanic and Atmospheric Administration.

                                                                                               North Carolina's Coastal
                                                                                                 Management Program

                                                                                            North Carolina established its coastal man-
                                                                                    agement program in 1974 with the passage of the
                                                                                    Coastal Area Management Act (CAMA). CAMA
                                                                                    recognized that the state's coastal area was being
                                                                                    subjected to pressures that "are the result of the
                                                                                    often conflicting need of a society expanding in
                                                                                    industrial development, in population and in the
                                                                                    recreational aspirations of its citizens ... ." [21 To
                                                                                    address these pressures, the General Assembly
                                                                                    passed CAMA, which laid the framework of "a
                                                                                    comprehensive plan for the protection, preserva-
                                                                                    tion, orderly development and management of the
                                                                                    coastal areas of North Carolina." [31 CAMA also


                                                                                                 Ocean Resources Planning - Page 9










              created the Coastal Resources Commission, mak-                and artificial reefs would qualify as development
              ing it responsible for designing state guidelines to          and require permits from the Division of Coastal
              regulate development activities in the coastal area.          Management. However, other activities in the
              [41 During the past 20 years, North Carolina has              state's ocean waters, such as commercial and rec-
              made significantprogress in developing a compre-              reational fishing and the expulsion of waterborne
              hensive management program for nearshore land                 pollutants from ships, may not constitute develop-
              and water. But little attention has been given to             ment. These cases may not trigger CAMA!s regula-
              expanding the program to the state's ocean waters.            tory review process. Of course, activities not cov-
                                                                            ered by CAMA would likely be covered by other
                      CAMA!s jurisdictional area, referred to as            state and federal laws.
              the coastal area, includes 20 of North Carolina's
              coastal counties, estuarine waters within these                        One objective of this chapter is to examine
              counties and the Atlantic Ocean seaward to the                the adequacy of CAMA and its regulatory stan-
              end of state jurisdiction. [5] Within the coastal             dards to properly manage activities likely to occur
              area, CAMA. directed the Coastal Resources Com-               in the state's ocean waters. Other state and federal
              mission to designate areas of environmental con-              laws and regulations that apply in conjunction
              cern (AECs). [61 These are specific areas within the          with or independently from CAMA are discussed in
              broader coastal area that need special protection             later chapters.
              because of their resource and use values and envi-
              ronmental sensitivity. All ocean waters in North                       I. The CAMA regulatory process
              Carolina fall within two AECs - the public trust
              and estuarine waters AECs. [71                                         Development activities regulated by CAMA
                                                                            are divided into major and minor categories. Major
                      The Coastal Resources Commission has                  development is any activity that requires permis-
              designed management guidelines for both AECs.                 sion, licensing, approval, certification or authori-
              Any development activity within these areas must              zation from another state or federal agency; occu-
              be consistent with the guidelines. The N.C. Divi-             pies more than 20 acres of land or water; contem-
              sion of Coastal Management in the Department of               plates drilling for or excavating natural resources
              Environment, Health and Natural Resources                     on land or underwater; or contemplates, on a single
              (DEHNR) administers a permit program to ensure                parcel, a structure or structures in excess of a
              that development activity is consistent with AEC              60,000-square-foot area. [91 Minor development is
              standards.                                                    any other activity fitting the definition of develop-
                                                                            ment.
                      Development is defined by CAMA as:
                                                                                     Permits for major development are pro-
                      Any activity in a duly designated area                cessed by the Division of Coastal Management,
                      of environmental concern involving,                   while all minor permit applications are processed
                      requiring or consisting ofthe construc-               by the local government where the development is
                      tion or enlargement of a structure;                   planned. Because development activities in North
                      excavation; dredging; filling; dump-                  Carolina's ocean will likely require permission
                      ing; removal of clay, silt, sand, gravel              from another state or federal agency, most will be
                      or minerals; bulkheading; driving of                  classified as major and processed by the state.
                      pilings; clearing or alteration as an
                      adjunct of construction; alteration or                         The review process for major development
                      removal of sand dunes; alteration of                  is more rigorous than that for minor permits.
                      the shore, bank or bottom of the At-                  Applications are reviewed by Division of Coastal
                      lantic Ocean or any sound, river, creek,              Management staff using information from the ap-
                      stream, lake or canal. [81                            plicant, AEC standards applicable to the proposed
                                                                            activity, comments by other state and federal agen-
                      This definition is quite broad and would              cies and comments from third parties (including
              include almost any bottom-disturbing activity in              adjoining property owners). These informational
              the state's ocean waters. Activities such as the              requirements and the AEC review standards were
              extraction of solid minerals from the seabed, explo-          written with land-based and nearshore develop-
              ration and development of oil and gas resources,              ment in mind and may not be adequate to cover
              channel dredging and other bottom-disturbing ac-              proposed ocean activities. The requirements and
              tivities associated with ocean outfalls, oceanjetties         standards are reviewed on the following pages.




              Ocean Resources Planning -Page 10









                              A. Application materials and Rublic notice                    Provision (3) should be amended to state
                                                                                    who (what entity) should be notified when a project
                              Applicants for major development permits              is proposed for ocean waters. For example, should
                     must complete an application form and attach:                  coastal counties and towns adjacent to the project
                                                                                    be notified? Should all littoral owners in each
                      (1)     an accurate work plan;                                county or town be notified?
                      (2)     a copy of a deed or other instrument under
                              which the applicant claims title;                             Once an application has been accepted,
                      (3)     proof that adjacent riparian landowners               public notice is issued by mailing an application
                              have been notified of the,proposed activity           copy to anyone who has requested notification, by
                              by including certified return mail receipts           posting notice at the development site or by pub-
                              (or copies thereof] to show they were sent            lishing notice in a newspaper of general circulation
                              a copy of the application;                            in the county where the development is proposed.
                      (4)     the appropriate environmental assessment              [111 For development activities proposed in the
                              document for development proposals sub-               ocean, these requirements are deficient. As noted
                              ject to review under the N.C. Environmen-             in the former chapter on jurisdiction, ocean lands
                              tal Policy Act; and                                   and waters do not fall within any county. Conse-
                      (5)     any other information needed for a thor-              quently, in what newspapers should notice be
                              ough and complete application review. [101            given? Perhaps statewide? Of course, posting no-
                                                                                    tice at the site may be impossible and fruitless.
                              It should be noted that the Division of
                              Coastal Management often requires infor-                      B. Application circulation and review b
                              mation for an entire development project              other state and federal a
                              when only a portion of it falls within an
                              AEC. This requirement, often referred to                      Completed applications are circulated to
                              as "the total development concept," could             several state and federal agencies with expertise in
                              have interesting ramifications in situa-              relevant fields. In addition to the Division ofCoastal
                              tions where only a small portion of the               Management, other state agencies within DEHNR
                              development touches the AEC. Take, for                review applications. They are: the Division of En-
                              example, ocean outfall proposals where                vironmental Management, Division ofMarine Fish-
                              only the pipe draining sewage from a                  eries, Division of Environmental Health (Shellfish
                              multijurisdictional area falls within the             Sanitation), Division of Land Resources, Division
                              AEC. Would an applicant be required to                of Water Resources and the Wildlife Resources
                              submit plans for the entire system?                   Commission. Other reviewing agencies are the
                                                                                    Division of Archives and History in the Depart-
                              Even though (4) and (5) should be suffi-              ment of Cultural Resources, Division of Commu-
                     cient to require the necessary materials for an                nity Assistance in the Department of Commerce,
                     application review, provisions (2) and (3) should be           State Property Office in the Department ofAdmin-
                     modified to cover development activities proposed              istration and Department of Transportation. Fed-
                     for the ocean. For example, provision (2) should               eral agencies reviewing applications are: the U.S.
                     state that leases for state submerged lands are                Army Corps of Engineers, Environmental Protec-
                     sufficient legal instruments if they convey a right            tion Agency (EPA), U.S. Fi   *sh and Wildlife Service
                     to use the land and/or water in question. There are            and National Marine Fisheries Service.
                     times when a legal right may be less than fee
                     simple title. In any event, having the legal right of                  The Division of Coastal Management de-
                     use should always be a prerequisite to an applica-             cides major development permits in part by using
                     tion review. This has the advantage ofavoiding the             these agencies' comments. It should be noted that
                     public expense of a review for which a lease may be            many commenting agencies have their own legal
                     denied. It also can avoid unnecessary expenses to              authority and may process permits under their
                     an applicant. Even though it is clear under CAMA               own laws and regulations. For example, the Divi-
                     standards that a legal instrument conveying a use              sion of Environmental Management processes
                     right is a prerequisite to review, other laws (includ-         NPDES (National Pollution Discharge Elimina-
                     ing those setting up the state leasing structure) are          tion System) permits and water quality certifica-
                     less clear on the sequence of events [see Section 4            tions (401 certifications) under the authority ofthe
                     (Extraction of Solid Minerals) and Section 5 (Oil              federal Clean Water Act. Also under the Clean
                     and Gas Activities) for a discussion of state policy           Water Act, the Army Corps of Engineers processes
                     for leasing submerged lands].                                  404 permits for applicants wanting to fill navigable
                                                                                    waters.


                                                                                                 Ocean Resources Planning - Page 11










                       C. CAMA review standards for the estua-                heads and shore stabilization measures; (8) beach
              rine waters and public trust AECs                               nourishment; and (9) wooden and riprap groins.
                                                                              [181 It is apparent from this list that specific
                       The focus ofthe CAMA review process is to              standards have been developed only for nearshore
              determine an activity's consistency with standards              activities. The Coastal Resources Commission has
              developed by the Coastal Resources Commission                   not developed specific use standards for activities
              for AECs. North Carolina's coastal ocean includes               likely to occur in the coastal ocean.
              the public trust and estuarine waters AECs.                              For most rules there are exceptions, and
                       The public trust AEC includes all waters               that is true for the use standards of the Coastal
              of the Atlantic Ocean and the lands thereunder                  Resources Commission. A development activity
              from the mean high watermark to the seaward                     can be permitted without meeting state standards
              limit of state jurisdiction. [121 The management                by demonstrating that it will have public benefits
              objective for this area is to protect public rights for         that "clearly outweigh the long-range adverse ef-
              navigation and recreation and to preserve and                   fects of the project, that there is no reasonable and
              manage the biological, economic and aesthetic value             prudent alternate site available for the project,
              of public trust areas. [131                                     and that all reasonable means and measures to
                                                                              mitigate adverse impacts have been incorporated
                       The estuarine waters AEC also includes                 into the project design and will be implemented at
              all ocean waters within the state'sjurisdiction. [141           the applicant's expense." [191
              The management objective for this area is to give
              the highest priority to conserving and managing                          To guide mitigation proposals and efforts,
              the important features of estuarine waters so as to             the Coastal Resources Commission developed a
              safeguard and perpetuate their biological, social,              mitigation policy. [201 The policy defines mitiga-
              aesthetic and economic values.... [15] Some of the              tion as the enhancement, creation or restoration of
              important features of the estuarine system are                  coastal resources to maintain the ecosystem's char-
              listed in the standards. They include mud and sand              acteristics and processes, such as natural biologi-
              flats, eelgrass beds, salt marshes, submerged veg-              cal productivity, habitat and species diversity,
              etation beds, clams and oyster beds and important,              physical integrity, water quality and aesthetics.
              nursery beds. [16] Nfissing from this list, however,            [21] The policy ranks mitigation forms in the fol-
              are many important features found in the open                   lowing order of preference:
              ocean, such as hard or live bottoms.                              (1)    (mitigation that leads to the) enhance-
                       To achieve the AEC management objec-                            ment of coastal resources with cre-
              tives, the Coastal Resources Commission has de-                          ated or restored systems determined
              veloped general and specific use standards against                       to be potentially more productive of
              which proposed development activities are mea-                           the resources characteristic of unal-
              sured. The general use standards for both public                         tered North Carolina ecosystems than
              trust and estuarine waters AECs state that before                        those destroyed;
              an activity can be permitted, it must be water-                   (2)    (mitigation that leads to the) creation
              dependent with no suitable alternative site outside                      or restoration of an area of similar
              the AEC, it must not violate water and air quality                       ecological utility and potential bio-
              standards, it must not cause major or irreversible                       logical value than that destroyed or
              damage to valuable documented archaeological or                          altered; and
              historic resources, it must not measurably increase               (3)    (mitigation that leads to the) creation
              siltation, it must not create stagnant water bodies,                     or restoration of an area with a dosir-
              it must be timed to have minimum effects on life                         able but different ecological function
              cycles of estuarine resources and it must not im-                        or potential than that destroyed or al-
              pede navigation or unduly interfere with access to                       tered.[221
              or use of public trust or estuarine waters. [171                         In addition, the following actions may be
                       In addition to these general standards, the            allowed under the policy even though they do not
              Coastal Resources Commission has specific use                   meet the definition of mitigation:
              standards to cover the following activities: (1) con-
              struction and maintenance ofnavigation channels,                  (1)    acquisition for public ownership of
              canals and boat basins; (2) hydraulic dredging; (3)                      unique and ecologically important
              drainage ditches; (4) nonagricultural drainage                           systems not protected by state and/or
              ditches; (5) marinas; (6) docks and piers; (7) bulk-                     federal regulatory programs,


              Ocean Resources Planning - Page 12









                        (2)    transfer ofprivately owned lands sub-                            All conflicts arising from the imple-
                               ject to state and federal regulatory                             mentation of this order with the De-
                               control into public ownership,                                   partment of Natural Resources and
                        (3)    provision of funds for research or for                           Community Development shall be re-
                               management programs, or                                          solved by the secretary of that depart-
                       (4)     increased public access for recre-                               ment, and all conflicts over consistency
                               ational use. [231                                                between the administering coastal
                                                                                                management agency (Department of
                               Even though the mitigation policy was                            Natural Resources and Community
                      written with nearshore activities in mind, it still                       Development) and another department
                      may be workable in addressing offshore prbposals.                         of state government shall be resolved
                      It will be useful to revisit the policy to determine its                  by the governor [see Appendix 3, Ex-
                      applicability to potential ocean activities, such as                      ecutive Order # 151.
                      the extraction of hard minerals or gas and oil. Also,
                      for the sake of consistent interagency review, other                      The CAMA process for reviewing major
                      "mitigationlike" state policies (for example, the                development permits was designed, in part, to
                      reclamation provisions developed by the state Min-               bring about the multiagency review envisioned by
                      ing Commission under the Mining Act) should be                   the governor's order. However, a consistent com-
                      reviewed and, where possible, made consistent                    plaint has been that development and implemen-
                      with the coastal management mitigation policy.                   tation ofstate regulations occurs in avacuum with-
                                                                                       out interagency or intercommission coordination.
                               IL CAMA and state auency coordination
                      and consistency                                                           To address this issue, the task force may
                                                                                       want to recommend to the Division of Coastal
                               CAMA envisioned a coastal management                    Management and Coastal Resources Commission
                      program that would coordinate the actions of rel-                that an interagency and intercommission manage-
                      evant state agencies. To ensure this coordination,               ment committee be created. This committee should
                      Gov. James B. Hunt signed Executive Order # 15 in                be composed of heads of the agencies and commis-
                      1977. The order states, in part, that:                           sions responsible for major programs affecting
                                                                                       coastal management. At a minimum, the commit-
                               All state agencies shall take account                   tee should include representatives of the Coastal
                               of and be consistent to the maximum                     Resources Commission, Division of Coastal Man-
                               extent possible with the coastal poli-                  agement, Environmental Management Commis-
                               cies, guidelines and standards con-                     sion, Division ofEnvironmental Management, Ma-
                               tained in the state guidelines, with                    rine Fisheries Commission and Division of Marine
                               the local land-use plans developed                      Fisheries. The committee would integrate and co-
                               under the mandate of the Coastal                        ordinate agency and commission policies and coastal
                               Area Management Act and with the                        activities, identify and resolve jurisdictional con-
                               North Carolina coastal plan prepared                    flict and overlap, and recommend legislation, rules
                               under the federal Coastal Zone Man-                     and memoranda of understanding.
                               agement Act of 1972 in all regulatory
                               programs, use and disposition ofstate-                           III, CAMA and federal consistency
                               owned lands, financial assistance for
                               public facilities, and encouragement                             Under the Coastal Zone Management Act,
                               and location of major public and pri-                   activities in federal ocean waters that affect any
                               vate growth-inducing facilities.                        natural resource, land or water use in the coastal
                                                                                       zone of an adjacent state must be consistent with
                               The secretary of Natural Resources                      the enforceable policies of the state's approved
                               and Community Development (now                          coastal management program. Federal permits or
                               Environment, Health and Natural                         licenses can be denied if this consistency require-
                               Resources) and the Coastal Resources                    ment is not satisfied. The consistency require-
                               Commission shall ensure the oppor-                      ment, thereby, gives a coastal state the tool to
                               tunity for full participation by affected               influence permitting in federal waters. The power
                               state agencies in the development of                    ofthis tool, however, depends largely on the strength
                               policies and guidelines for the coastal                 of the state's enforceable policies in its own coastal
                               area prior to their adoption.                           ocean.




                                                                                                     Ocean Resources Planning - Page 13










                       The federal regulation defines enforceable                      are not limited to, the right to navi-
             policies as "state policies that are legally binding                      gate, swim, hunt, fish and enjoy all
             through constitutional provisions, laws, regula-                          recreational activities in the water-
             tions, land-use plans, ordinances or judicial deci-                       courses of the state and the right to
             sions by which a state exerts control over private                        freely use and enjoy the state's ocean
             and public land and water uses and natural re-                            and estuarine beaches and public ac-
             sources in the coastal zone." [241 These policies                         cess to the beaches. [271
             include CAMA and its implementing regulations
             as well as the other laws and regulations pertain-                        The General Assembly has codified the
             ing to the ocean activities discussed in this report             geographic boundaries ofthe public trust doctrine,
             [see Appendix 4 for enforceable policies identified              applying it to "submerged lands under navigable
             in North Carolina's coastal management plan].                    waters." Submerged lands are state lands that lie
                                                                              beneath any navigable waters within the bound-
                       The act'sconsistency provision gives states            aries of this state or the Atlantic Ocean to a dis-
             some jurisdiction in federal waters by treating                  tance ofthree geographical miles seaward from the
             activities there as though they were taking place in             state coastline. [281 Even though there has been
             state waters if they affect state land or water                  some difficulty in determining how to apply the
             resources. Without this provision, a state would                 term navigable waters to nonocean interior waters
             have no jurisdiction and its policy would not be                 (particularly fresh waters), it is clear from common
             binding on federal permittees or licensees. To take              law and statutory definition that the public trust
             maximum advantage of the consistency provision,                  doctrine applies to the lands and waters of the
             North Carolina should examine its coastal zone                   Atlantic Ocean within the state's territorial sea.
             management program with an eye toward shaping
             activities in federal waters off its shoreline. More                      In addition to codifying public trust rights
             specifically, North Carolina should examine each                 and the geographic boundaries within which those
             potential development activity in federal waters                 rights can be exercised, the General Assembly has
             and then evaluate how it currently regulates that                also recognized the public trust nature of marine
             activity in state waters. Weaknesses should be                   and estuarine wildlife resources. General Statute
             noted and corrected. That is, in part, the objective             113-131 recognizes that "the marine and estuarine
             of this report.                                                  resources of the state belong to the people of the
                                                                              state as a whole." The statute charges DEHNR and
             The Public Trust Doctrine                                        the Wildlife Resources Commission with steward-
                                                                              ship responsibilities for these resources.
                       The judicially created public trust       doc-
             trine is based on the theory that title to all sub-                      The Public Trust Doctrine and
             merged lands under navigable waters is vested in                                  State Legislation
             the state in trust for the benefit of its people. [251
             It is rooted in the American colonies' claim of                           CAMA gives the Coastal Resources Com-
             independence from England. Historically, the pri-                mission authority to adopt standards for the "pro-
             mary function of the doctrine was to recognize and               tection ofpresent common law and statutory rights
             protect a public right of navigation by prohibiting              in the lands and waters of the coastal area." [291
             obstructions in navigable waters. Other public                   The act also gives the Division of Coastal Manage-
             rights, such as the right to fish and swim, have                 ment the power to deny a permit to any proposed
             been more recently recognized. North Carolina                    development activity that would jeopardize public
             courts have interpreted the doctrine as open-ended,              trust rights. [301 As discussed earlier, the Coastal
             recognizing that new rights may be added as soci-                Resources Commission has developed regulations
             etal needs dictate. [261 In 1985, the General                    for the public trust AEC.
             Assembly codified a list of public trust rights and
             recognized that the courts may continue to define                         In addition to the Coastal Resources Com-
             and expand the doctrine. It provides that:                       mission and Division of Coastal Management, sev-
                                                                              eral other commissions and agencies within
                       ... "public trust right" means those                   DEHNR are authorized to regulate certain activi-
                       rights held in trust by the state for the              ties (including navigation and fishing) that could
                       use and benefit of the people of the                   negatively impact the public trust. As will be dis-
                       state in common. They are established                  cussed later [Section 6], the Marine Fisheries Com-
                       by common law as interpreted by the                    mission and Division of Marine Fisheries are au-
                       courts of this state. They include, but                thorized to regulate fishing in the state's estuarine
                                                                              and ocean waters. The Wildlife Resources Com-


             Ocean Resources Planning - Page 14









                     mission and its staff are authorized to regulate               so long as they are consistent with federal guide-
                     boating and promote boating safety in state waters             lines. [351 In 1974, EPA gave North Carolina the
                     [Section 81. In addition, the State Property Office of         authority to implement its own water quality pro-
                     the Department of Administration is responsible                gram. Consequently, the state Legislature adop-
                     for leasing and granting easements over public                 ted laws that outline North Carolina's water qual-
                     Jands. This is of great importance to the proper               ity strategy. Most of these laws can be found in
                     management ofthe state's ocean public trust lands              Chapter 143, Article 21, Part I of the N.C. General
                     and waters [see Section 4 (Extraction of Solid                 Statutes. These laws established the Environmen-
                     Minerals) and Section 5 (Oil and Gas Activities) for           tal Management Commission (staffed by the Divi-
                     a discussion of state leasing procedures].                     sion of Environmental Management) and autho-
                                                                                    rized it to adopt and establish standards for state
                     Federal and State Law                                          water quality classifications. [361 The commission
                     Regulating Water Quality                                       has developed classifications and standards for
                                                                                    both fresh and tidal waters. [371 In line with the
                              The Water Pollution Control Act, more                 federal act, discharges are only allowed if they do
                     commonly called the Clean Water Act, is the lead-              not violate water quality standards. A state permit
                     ing federal law addressing water quality. [3 11 The            process is in place to determine the impact of a
                     overall goal of the act is to make all waters of the           discharge. [381 It should also be noted that Section
                     United States fishable and swimmable. One of its               401 of the Clean Water Act requires all applicants
                     missions is to limit and eventually eliminate direct           for federal licenses or permits to obtain a state
                     (point source) pollution discharges. Examples of               water quality certification for any activity that
                     point source discharges include those from a pipe,             may discharge into state waters. [391
                     such as wastewater from a municipal sewage facil-                       Water quality issues can take many differ-
                     ity or industrial site. To limit pollution from point          ent forms in the ocean. Point source discharges can
                     sources, the act requires that: (1) the waters of the          occur from ocean outfalls. Other discharges can be
                     country be classified according to their highest and           associated with mining activities, oil and gas ac-
                     best use; (2) for each classification, water quality           tivities and the construction of navigation aids,
                     standards be developed; and (3) point source dis-              such as jetties or channel dredging. [401 These
                     charges be allowed only if the discharge does not              activities and their possible impacts on water qual-
                     violate the water quality standards ofthe receiving            ity will be explored in later chapters.
                     waters.  The act creates a permit process to assess            ][he LUtional and State
                     the impact of discharges. This process, established            gnvironmental Policy AcLs
                     by Section 402 of the Clean Water Act, is called the
                     National Pollution Discharge Elimination System                         The National Environmental Policy Act,
                     (NPDES). Permits issued under the process are                  signed into law in 1970, requires a detailed state-
                     NPDES permits. [321                                            ment regarding "every recommendation or report
                                                                                    on proposals for legislation and other major federal
                              The Clean Water Act is administered by                actions significantly affecting the quality of the
                     EPA, which develops the regulatory standards to                human environment." [411 In particular, the act
                     fulfill the act's broad directives. However, the act           requires the statement to include:
                     does require that other federal agencies partici-
                     pate in implementing the law. For example, the                   (1)    the environmental impact of the pro-
                     U.S. Army Corps of Engineers executes the permit                        posed action,
                     program that regulates placement of fill material                (2)    any adverse environmental effects
                     into the navigable waters of the United States.                         that cannot be avoided should the
                     This would include fill placed in North Carolina's                      proposal be implemented,
                     coastal ocean. This program is often called the 404              (3)    alternatives to the proposed action,
                     Program after the section of the act that created it.            (4)    the relationship between local short-
                     [331 The Clean Water Act also requires the U.S.                         term uses ofthe environment and the
                     Coast Guard to enforce the use of marine sanita-                        maintenance and enhancement of
                     tion devices. [341 These devices receive, retain,                       long-term productivity, and
                     treat and discharge sewage from boats.                           (5)    any irreversible and irretrievable
                                                                                             commitments ofresources thatwould
                              The Clean Water Act allows individual                          be involved in the proposed action
                     states to set up their own water quality programs                       should it be implemented. [42]


                                                                                                 Ocean Resources Planning - Page 15










                         One ofthe most contentious issues regard-                     (4)      alternatives to the proposed action,
                ing the National Environmental Policy Act has                          (5)      the relationship between the short-
                been the question of when an impact statement is                                term uses ofthe environment involved
                necessary. For instance, what constitutes a "major                              in the proposed action and the main-
                federal action" and what action "significantly af-                              tenance and enhancement of long-
                fects the quality of the human environment?" For                                term productivity, and
                purposes of this study, suffice it to say that most                    (6)      any irreversible and irretrievable en-
                activities in the state's ocean stewardship area                                vironmental changes that would be
                requiring a federal permit or license would require                             involved in the proposed action should
                a federal environmental impact statement or, at a                               it be implemented. [471
                minimum, an environmental assessment.                                           North Carolina's reporting standards are
                         An environmental assessment under the                        almost identical to the requirements of the Na-
                National Environmental Policy Act is an initial                       tional Environmental Policy Act except that the
                document in which the proposer briefly discusses                      state also requires the notation of mitigation mea-
                the need for the proposal as well as the environ-                     sures. Chapter 25 of the N.C. Administrative Code
                mental impacts and alternatives to the proposal. It                   outlines the rules for implementing the act. [481
                is a threshold document, and it is held to a lower                    The Department of Administration is designated
                standard of analysis than an environmental im-                        as the clearinghouse agency to coordinate the act s
                pact statement. Agencies often use the environ-                       requirements.
                mental assessment to make a "finding of no signifi-
                cant impact." These findings are attractive to many                             Methods ofcompliance with the N.C. Envi-
                federal project directors because they allow the                      ronmental Policy Act are very similar to the na-
                agency to circumvent the requirements of an envi-                     tional act. An environmental assessment is used as
                ronmental impact statement. [431                                      a decision-making tool to determine if a planned
                                                                                      project would require an environmental impact
                         In 1971, North Carolina passed its own                       statement. [491 If the assessment demonstrates
                Environmental Policy Act. [44] The purpose of the                     that the project will have no significant adverse
                act is:                                                               effect on the quality of the environment, the state
                                                                                      agency must file a finding of no significant impact.
                         to declare a state policy which will                         It must contain:
                         encourage the wise, productive and
                         beneficial use ofthe natural resources                        (1)      a brief narrative description of the
                         of the state without damage to the                                     proposed activity, including a descrip-
                         environment, maintain a healthy and                                    tion of the area affected by the pro-
                         pleasant environment and preserve                                      posed activity and a site location plan;
                         the natural beauty of the state                               (2)      a list of probable environmental im-
                         [451                                                                   pacts of the proposed activity;
                                                                                       (3)      a list of the reason(s) for concluding
                         To accomplish this goal, state agencies are                            that the action will not have a signifi-
                required to "consider and report upon environmen-                               cant adverse effect on the quality of
                tal aspects and consequences of their actions in-                               the environment, with reference to
                volving the expenditure ofpublic moneys or the use                              mitigation activities to be carried out,
                of public land." [46] Ocean activities within three                             thereby negating the necessity ofpre-
                miles of the shoreline are likely to invoke the                                 paring an environmental impact
                reporting requirements ofthe N.C. Environmental                                 statement; and
                Policy Act since they would be on state property. If                   (4)      a statement that no environmental
                a report is necessary, the act requires the respon-                             impact statement is to be prepared,
                sible state official to set forth:                                              and the finding of no significant im-
                                                                                                pact completes the environmental
                 (1)     the environmental impact of the pro-                                   review record. [501
                         posed action,
                 (2)     any significant adverse environmen-                                    Of course, a state agency can choose to
                         tal effects that cannot be avoided                           prepare an environmental impact statement with-
                         should the proposal be implemented,                          out going through the environmental assessment
                 (3)     mitigation measures proposed to min-                         process.
                         imize the impact,



                Ocean Resources Planning - Page 16







                     Endangered Species al3d Marine                                 rior (or their representative within the National
                                                                                    Oceanic and Atmospheric Administration or the
                     Mammals                                                        U.S. Fish and Wildlife Service) for activities that
                                                                                    involve the incidental and unintentional taking of
                              As noted in Section 2, many laws passed by            small numbers of marine mammals that are not
                     Congress apply to North Carolina's lands and wa-               part of a depleted species or population stock. [541
                     ters. From an oceanic perspective, two federal laws            There are two types of small take permits - one
                     that could significantly influence the management              applicable to U.S. citizens who fish commercially
                     of living resources are the Endangered Species Act             and another to citizens not involved in commercial
                     of 1973 and the Marine Mammal Protection Act of                fishing activities. [551
                     1972. Both acts have been controversial and are
                     going through the legislative reauthorization pro-                      General permits can be issued for marine
                     cess in 1994 - a process that could mean substan-              mammals taken incidentally in the course of com-
                     tial change.                                                   mercial fishing. However, in allowing general per-
                             Marine Mammal Protection Act                           mits, the act states that:
                                                                                             ... In any event, it shall be the immed-
                              The intent of the Marine Mammal Protec-                        iate goal that the incidental kill or
                     tion Act is to impose a general moratorium, with                        incidental serious injury of marine
                     certain exceptions, on the taking of marine mam-                        mammals permitted in the course of
                     mals. In passing the act, Congress found that:                          commercial fishing operations be re-
                                                                                             duced to insignificant levels approach-
                       (1)    certain species and population stocks                          ing a zero mortality and serious injury
                              of marine mammals are, or may be, in                           rate.... [561
                              danger of extinction or depletion be-
                              cause of man's activities;                                     The National Marine Fisheries Service of
                      (2)     such species and population stocks                    the National Oceanic and Atmospheric Adminis-
                              should not be permitted to diminish                   tration must estimate the population of any ma-
                              beyond the point at which they cease                  rine mammal that is the subject for a general
                              to be a significant functioning ele-                  permit before the permit can be issued. National
                              ment in the ecosystem of which they                   Marine Fisheries Service must also determine if
                              are a part, and, consistent with this                 the species is at its optimum sustainable popula-
                              major objective, they should not be                   tion. [57] This requirement wasjudicially asserted
                              permitted to diminish below their op-                 in the 1988 case Kokechik Fisherman!s Assgcia-
                              timum sustainable population. Fur-                    tion v, Secretary of Commerce, 839 F.2d 795, hold-
                              ther measures should be immediately                   ing that a permit for incidental takings of a marine
                              taken to replenish any species or popu-               mammal could not lawfully be issued before the
                              lation stock that has already dimin-                  secretary ascertained that species' optimum sus-
                              ished below that population. In par-                  tainable population. Partly as a reaction to this
                              ticular, efforts should be made to pro-               case, Congress amended the Marine Mammal Pro-
                              tect the rookeries, mating grounds and                tection Act in 1988 to establish an interim exemp-
                              areas of similar significance for each                tion for commercial fisheries. While the exemption
                              species of marine mammal from the                     gave the fishing industry a temporary reprieve
                              adverse effect of man's actions.... [51]              from the incidental takings requirement, the
                                                                                    amendment mandated reporting and monitoring
                              Based on these findings, the act estab-               to increase overall data on marine mammal popu-
                     lishes a moratorium on the taking and importing of             lations. The interim period, originally set to end
                     marine mammals and marine mammal products.                     Oct. 1, 1993, was extended twice as Congress
                     [521 To take is defined as "to harass, hunt, capture           struggled with amendments to the act. Agreement
                     or kill or attempt to harass, hunt, capture or kill            has since been reached and the new law sets out
                     any marine mammal." 1531 There are, however,                   immediately to reduce incidental mortality or seri-
                     four types of exemptions under the act. They in-               ous injury of marine mammals to near-zero levels
                     clude small take permits, general permits, permits             within seven years. [581
                     for public display and scientific research, and a
                     special permit for Alaskan natives.                                     Under the new law, fishers cannot inten-
                                                                                    tionally kill a marine mammal unless it is "immi-
                              Small take permits are issued by the sec-             nently necessary in self-defense or to save the life
                     retaries of the departments of Commerce or Inte-               of a person in immediate danger." The legislation


                                                                                                 Ocean Resources Planning - Page 17










             requires the identification ofmarine mammal stocks                       Upon request therefor by citizens of
             that are in trouble and the formation of teams to                        the United States who engage in a
             develop take-reduction plans. Sometime this sum-                         specified activity (other than commer-
             mer (1994), three scientific groups must be as-                          cial fishing) within a specified geo-
             sembled to represent the East Coast and Gulf of                          graphical region, the secretary shall
             Mexico, the Pacific Coast and Hawaii, and Alaska.                        allow, during periods ofnot more than
             The mandate is to bring together people with                             five consecutive years each, the inci-
             scientific or practical fishing experience to provide                    dental, but not intentional, taking by
             information on marine mammal populations,                                citizens while engaging in that activ-
             trends, research needs and the impacts of habitat                        ity within that region of small num-
             destruction, pollution and natural environmental                         bers of marine mammals of a species
             change. These groups are to advise the secretary of                      or population stock if the secretary,
             commerce on the number of animals that can                               after notice (... in the coastal areas
             safely be removed from the population. By Aug. 1,                        that may be affected by such activity)
             1994, the secretary - by way of these groups -                           and opportunity for public comment
             must prepare for public comment the assessments                          - W finds that the total of such tak-
             of all marine mammal stocks in U.S. waters. The                          ing during each five-year (or less) pe-
             assessments will describe the geographic range of                        riod concerned will have a negligible
             the stock, estimate minimum population size and                          impact on such species or stock and
             trends, estimate annual human-caused mortali-                            will not have an unmitigated adverse
             ties and serious injuries and describe any fishing                       impact
             activity. that interacts with the stock and the rate
             of takes. [591                                                           The Marine Mammal Protection Act al-
                                                                             lows states to develop and implement a marine
                      The assessments must also categorize the               mammal protection and conservation strategy and
             stocks in one of two ways: as strategic or as not               seek a transfer of the act's authority. [611 North
             having a level of human-caused mortality and                    Carolina has yet to develop an overall strategy that
             injury that would reduce them below levels of                   would qualify for a transfer even though it has
             optimum sustainable population. Strategic stocks                passed a statute specifically protecting porpoises.
             are populations for which the level of direct hu-               [621
             man-caused mortality exceeds the potential bio-
             logical removal level; that are listed as threatened,                      Endangered Species Act
             endangered or depleted; or that are declining and
             likely to soon be designated as threatened. Poten-                       The purpose of the Endangered Species
             tial biological removal levels are the "maximum                 Act is to
             number of animals, not including natural mortali-
             ties, that may be removed from a marine mammal                           ... provide a means whereby the ecosys-
             stock while allowing that stock to reach or main-                        tems upon which endangered species
             tain its optimum sustainable population." [601                           and threatened species depend may be
                                                                                      conserved, to provide a program for the
                      North Carolina must ensure that develop-                        conservation of such endangered spe-
             ment activities (regulated by CAMA) and nonde-                           cies and threatened species        [631
             velopment activities (typically not regulated by
             CAMA) abide by the mandates ofthe Marine Mam-                            The act defines endangered and threat-
             mal Protection Act. It is unlawful to take any                  ened species respectively as:
             marine mammal without abiding by the specific
             permit criteria for exceptions.                                          ... any species which is in danger of
                                                                                      extinction throughout all or a signifi-
                      In addition to the extraction of living re-                     cant portion of its range other than a
             sources from the coastal ocean, the future pros-                         species of the Class Insecta deter-
             pects of nonliving resource exploitation should be                       mined by the secretary (of commerce)
             considered in a comprehensive ocean policy. Oil                          to constitute a pest whose protection
             and natural gas exploration and drilling, as well as                     under the provisions of this chapter
             the extraction of solid minerals, must abide by the                      would present an overwhelming and
             Marine Mammal Protection Act. A small take                               overriding risk to man       [641
             permit is available under Section 1371(a)(5)(A) for
             noncommercial fishingactivities. This section states                     ... any species which is likely to be-
             that:                                                                    come an endangered species within


             Ocean Resources Planning - Page 18








                                the foreseeable future throughout all                     states by approving a state program for the conser-
                                or a significant part of its range. [651                  vation of endangered and threatened species and
                                                                                          subsequently helping to implement it. If there are
                                The secretary of commerce must make                       any conflicts between federal and state law with
                       determinations based solely on the best scientific                 regard to the provisions of the Endangered Species
                       and commercial information available after re-                     Act, the state law or regulation is void. [741
                       viewing the status of any species in question. [661
                       The secretary is also required to designate critical                         Although North Carolina does not have a
                       habitat, which is defined as:                                      federally approved management program, the state
                                                                                          has passed legislation to protect endangered or
                                (i) the specific areas within the geo-                    threatened species. [751 This legislation, the En-
                                graphical area    occupied by the spe-                    dangered and Threatened Wildlife and Wildlife
                                cies ... on which are found those physi-                  Species of Special Concern, is administered by the
                                cal or biological features (I) essential                  Wildlife Resources Commission and makes it im-
                                to the conservation of the species and                    lawful to take, possess, transport, sell, barter,
                                (II) may require special management                       trade, exchange, export (or offer to engage in these
                                considerations or protection; and                         activities) any wild animal on the state protected
                                                                                          list. [761
                                (ii) specific areas outside the geo-
                                graphical area occupied by the spe-                                 The state act, however, is not as compre-
                                cies at the time it is listed upon a                      hensive as the federal law. For example, a wild
                                determination by the secretary that                       animal under the state legislation is any native or
                                such areas are essential for the con-                     once-native nongame amphibian, bird, crustacean,
                                servation of the species... . [671                        fish, mammal, mollusk or reptile ... except those
                                                                                          inhabiting and depending upon coastal fishing
                                The secretary shall publish a list of all                 waters, marine and estuarine resources, marine
                       designated endangered and threatened species and                   mammals found in coastal fishing waters and sea
                       their respective critical habitat. [68] The list is                turtles found in coastal fishing waters. [771 This
                       evaluated every five years.                                        exception likely derives from the jurisdictional
                                                                                          limitations of the Wildlife Resources Commission.
                                Once listed or proposed for listing, it is                Even though General Statute 113-131 gives both
                       unlawful for any federal agency to take an action                  the Wildlife Resources Commission and Division of
                       (either funded or carried out) that is likely to                   Marine Fisheries (as part ofDEHNR) stewardship
                       jeopardize the existence ofan endangered orthreat-                 responsibilities over marine and estuarine re-
                       ened species or cause the destruction or adverse                   sources, the Marine Fisheries Commission gener-
                       modification of its habitat. [69] It is also unlawful              ally has management authority over living marine
                       for any person subject to U.S. jurisdiction to import              resources. With the exception of sea turtles, the
                       or export fish and wildlife species, to take such                  Wildlife Resources Commission does not have au-
                       species within the United States or its territorial                thority over marine species. 1781 The General
                       sea or upon the high seas. Further, it is unlawful to              Assembly has not enacted broad legislation for
                       possess, sell, deliver, carry, transport or ship, by               marine endangered species, though it has passed
                       any means, an endangered or threatened species.                    specific legislation protecting sea turtles. [791 The
                       [701                                                               director of the Division of Marine Fisheries has
                                                                                          proclamation authority to close or restrict coastal
                                To take is defined as "to harass, harm,                   waters "with respect to taking or attempting to
                       pursue, hunt, shoot, wound, kill, trap, capture or                 take any or all kinds of marine resources when the
                       collect or to attempt to engage in any such con-                   method (equipment) used is a serious threat to an
                       duct." [7 11 Harm has been construed broadly as an                 endangered or threatened species listed pursuant
                       act that significantly modifies or degrades habitat                to the federal Endangered Species Act" [801 [see
                       so that it actuallykills orinjures wildlife byimpair-              Appendix 5 for a list of endangered wildlife of
                       ing essential behavioral patterns, including breed-                North Carolina].
                       ing, feeding or sheltering. [721
                                                                                                    The state statute makes it unlawful for
                                In carrying out the mandates of the En-                   anyone to willfully take, disturb or destroy sea
                       dangered Species Act, the secretary of interior                    turtles or porpoises. Of course, the inconsistency
                       must cooperate to the "maximum extent practi-                      here, when compared to the federal Endangered
                       cable with the states." [731 The secretary is autho-               Species Act, is the lack of protection from the
                       rized to enter into management agreements with                     incidental take, of these species.


                                                                                                        Ocean Resources Planning - Page 19









              Recommendations                                                           II. In order for North Carolina's coastal
                                                                               management program to be truly comprehensive,
                       I. In order for North Carolina's coastal                it should strive to more effectively coordinate the
              management program to be truly comprehensive,                    activities of agencies and commissions that are
              it must anticipate activities that are likely to occur           responsible for the major programs affecting coastal
              in the state's coastal ocean. To accomplish this                 management. It is recommended that the task
              goal, it is recommended that the task force ask the              force ask the Division of Coastal Management and
              Division of Coastal Management and Coastal Re-                   Coastal Resources Commission to:
              sources Commission to:
                                                                                        A. Recommend the creation of a manage-
                       A. Review the current definition of devel-              ment committee composed of the heads of the
              opment under CAMA and assess whether it is                       agencies and commissions responsible for major
              sufficiently inclusive to bring within its regulatory            programs that affect coastal management. At a
              jurisdiction all those ocean activities for which                minimum, the committee should include repre-
              CAMA regulation may be desirable.                                sentatives from the Coastal Resources Commis-
                                                                               sion, Division of Coastal Management, Environ-
                       B. Refine the application procedures for                mental Management Commission, Division of En-
              CAMA major development permits to adequately                     vironmental Management, Marine Fisheries Com-
              cover ocean activities. In particular, review and                mission and Division of Marine Fisheries. The
              refine the required application support materials                committee should integrate and coordinate agency
              and public notice requirements.                                  and commission policies and coastal activities;
                                                                               identify and resolvejurisdictional conffict and over-
                       C. Refine the current AEC (public trust                 lap; and recommend legislation, rules and.memo-
              and estuarine waters) regulations to make them                   randa of understanding.
              more ocean-focused. In particular, develop specific                       B. From an ocean perspective, this com-
              use standards for activities likely to occur in the              mittee should be responsible for reviewing new
              state's coastal ocean. An example is the draft                   state standards with an eye toward their use as
              coastal energy policy discussed in Section 5, Oil                enforceable policies in future consistency determi-
              and Gas Activities.                                              nations.                          I                                        I
                       D. Assess coastal management's "total de-                        III. With regard to marine mammals and
              velopment concept" in light of development activi-               endangered species:
              ties that could be proposed for the estuarine and
              public trust AECs. For example, would a proposal                          A. North Carolina should become an ac-
              for a sewage ocean outfall lead the Division- of                 tive participant in the East Coast and Gulf of
              Coastal Management to require the applicant to                   Mexico scientific group established through the
              submit development plans for the entire central-                 Marine Mammal Protection Act. This group will
              ized sewage system? If so, what conditions could                 identify troubled marine mammal stocks and de-
              the division impose on the applicant beyond those                velop take reduction plans.
              associatedwith construction within the AEC? Could
              the Coastal Resources Commission and Division of                          B. North Carolina should assess whether
              Coastal Management impose growth management                      it desires a transfer of Marine Mammal Protection
              conditions on a permit for outfall construction?                 Act authority. Obtaining this authority would re-
                       E. Review the Division of Coastal Man-                  quire the state to develop a protection and conser-
              agement's mitigation policy in light of ocean con-               vation strategy, which would need approval from
              cerns. Where possible, make the policy consistent                the secretary ofthe U.S. Department of Commerce.
              with other "mitigationlike" requirements prescribed                       C. North Carolina should consider devel-
              by other laws as prerequisites to allowing ocean                 oping comprehensive endangered species laws for
              activities.                                                      the marine environment. The state currently has a
                       F. Assess the need ofadding another mem-                program for nonmarine species and sea turtles,
              ber to the Coastal Resources Commission with                     which is administered by the Wildlife Resources
              ocean affairs expertise. This would ultimately re-               Commission. A comprehensive marine program
              quire an amendment to CAMA.                                      would likely be administered by the Marine Fish-
                                                                               eries Commission and Division of Marine Fisher-
                                                                               ies.



              Ocean Resources Planning - Page 20









                      Footnotes                                                        ment. Center for Urban and Regional Studies,
                                                                                       1991.
                      [1116 U.S.C.A. 1451 et seq.                                      [261 Clark, Walter. North Carolina's Estuaries- A
                      [21 GS 113A-102(a).                                              Pilot Study for Managing Multiple Use in the
                                                                                       State's Public Trust Waters. Albemarle-Pamlico
                      [31 Id.                                                          Estuarine Study, Report 90-10, 1990.
                      [41 GS 113A-107(b).                                              [271 GS 1-45.1.
                      [51 GS 113A-103(2).                                              [281 GS 146-64(7) and 146-64(4).
                      [61 GS 113A-113.                                                 [291 GS 113A-102.
                      (71 There are 13 AEC subcategories within four                   [301 GS 113A-120(a)(5).
                      broad categories: the estuarine system, ocean haz-               [31133 U.S.C.A 1251 et seq.
                      ard areas, public water supplies, and natural and
                      cultural resource areas.
                                                                                       [32133 U.S.C.A 1342 (often referred to as Section
                      [81 GS 113A-103(5).                                              402).
                      [91 GS 113A-118(d).                                              [33133 U.S.C.A. 1344.
                      [101 15A NCAC 7J.0204(b).                                        [34133 U.S.C.A 1332. The U.S. Coast Guard has
                                                                                       the duty to "certify" devices that meet the EPA
                      [111 GS 113A-119(b) and 15A NCAC 7J.0206.                        standards.
                      [121 15A NCAC 7H.0207(a).                                        [35133 U.S.C.A. 1342.
                      [131 15A NCAC 7H.0207(c).                                        1361 GS 143-214.1.
                      [141 GS 113A-113(b)(2).                                          [371 15A NCAC 2B .0211-.0212.
                      [151 15A NCAC 7H.0206(c).                                        [381 GS 143-215.1.
                      [161 15A NCAC 7H.0206(b).                                        [39133 U.S.C.A. 1341.
                      (171 15A NCAC 7H .0208(a).                                       [401 "Pollutants" falling under the NTPDES regula-
                                                                                       tory system include dredged material, solid waste,
                      [181 15A NCAC 7H.0208(b).                                        incinerator residue, filter backwash, sewage, gar-
                                                                                       bage, sewage sludge, munitions, chemical wastes,
                      [191 15A NCAC 7H.0208(a)(3).                                     biological materials, radioactive materials (except
                                                                                       those regulated by the Atomic Energy Commis-
                      [201 15A NCAC 7H.0700.                                           sion), heat, wrecked or discarded equipment, rock,
                                                                                       sand, cellar dirt and industrial, municipal and
                      [211 15A NCAC 7H .0702.                                          agricultural waste discharged into water. 40 CFR
                      [221 15A NCAC 7H .07      104(l)-(3).                            122.2.
                                                                                       [41142 U.S.C.A. 4321 et seq., Pub. L. 91-190 (1970).
                      [231 15A NCAC 7H .0704(4).                                       [421 Id.
                      [24115 CFR 923.102(b)(1).                                        [431 Plater, Zygmunt; Robert Adams; and William
                      [251 Brower, David and William Dossett. Memo-                    Goldfarb. Environmental Law and Policy: Nature,
                      randum ReLrardina Coastal Resources Commis-                      Law and Societ . West Publishing Co., 1992.
                      sion Administrative Rules Relatingto Erosion Con-
                      trol Activity, Public Trust and Marina Develop                   [441 GS 113A-1 et seq.


                                                                                                     Ocean Resources Planning - Page 21
  All










               [451 GS 113A-2.                                                     [701 16 U.S.C. 1538(a)(1). Whereas Section 1536
                                                                                   only applies to federal actions, including federally
               [461 Id.                                                            permitted actions, Section 1538 is more expansive
                                                                                   in that it applies to any person subject to U.S.
               [471 GS 113A-4(2).                                                  jurisdiction (federal and state, public or private).
                                                                                   Section 1538(a)(2) covers.plant species, and al-
               [4811 NCAC 25.0100 -.0900.                                          though similar to Section (a)(1), some ofthe section's
               [491 1 NCAC 25.0401.                                                language is directed specifically to plants.
                                                                                   [71116 U.S.C. 1532(19).
               [501 1 NCAC 25.0505.                                                [72] For an interesting case regarding this Ian-
               [5-1116 U.S.C. 1361.                                                guage, see: Palila v. Hawaii Department of Land
                                                                                   and Natural Resources 852 F.2d 1106 (1988). This
               [521 16 U.S.C. 1371.                                                case upheld a lower court's holding that habitat
                                                                                   degradation does constitute harm in that it could
               [531 16 U.S.C. 1362(13).                                            result in extinction. The Sierra Club, Audubon
                                                                                   Society and other environmentalists succeeded in
               [541 The National Oceanic and Atmospheric Ad-                       convincing the court to order the removal of mou-
               ministration is responsible for mammals within                      flon sheep from the critical habitat of the Palila (a
               the order Cetacean and, except for walruses, the                    small bird listed as an endangered species). The
               order Pinnipedia. The Department of Interior is                     sheep had been feeding on a certain tree upon
               responsible for all other marine mammals. 16                        which the Palila is totally dependent. The sheep
               U.S.C. 1362(12).                                                    had been introduced by the department mainly for
                                                                                   the use of sport hunters. Both the hunters and the
               [55116 U.S.C. 1371(04)(A)45)(A).                                    department argued the Palila was not harmed by
                                                                                   the sheep because the harm suffered was not "ac-
               [56116 U.S.C. 1371(a)(2).                                           tual" - it did not result in the immediate destruc-
                                                                                   tion of the Palila's food sources. The court dis-
               [57116 U.S.C. 1373 and 1374.                                        agreed with this position.

               [58116 U.S.C. 1379(b).                                              [73116 U.S.C. 1535.

               [591 Fullilove, Jim. National Fisherman, Vol. 75,                   [74116 U.S.C. 1535(f).
               No. 3, July 1994.
                                                                                   [751 GS 113-331.
               [601 Id.
                                                                                   [761 GS 113-337.
               [61116 U.S.C. 1379(b) and 1379(c).
               [621 GS 113-189.                                                    [771 GS 113-331(10).
                                                                                   [781 15A NCAC 31 .0007. Endangered or Threat-
               [63116 U.S.C. 1531(b).                                              ened Species. Pursuant to a cooperative agreement
                                                                                   entered into on Feb. 5, 1979, by DEHNR, the
               [64116 U.S.C. 1532(6).                                              Marine Fisheries Commission and the Wildlife
                                                                                   Resources Commission, the Wildlife Resources
               [65116 U.S.C. 1532(20).                                             Commission will exercise regulatory jurisdiction
                                                                                   over any species of sea turtles and their eggs and
               [66116 U.S.C. 1533(b).                                              nests, consistent with designation of such species
                                                                                   as endangered or threatened by the U.S. Fish and
               [67116 U.S.C. 1532(5).                                              Wildlife Service.

               [681 16 U.S.C. 1533(a).                                             [791 GS 113-189.

               [691 16 U.S.C. 1536(a)(2). A federal action may                     [801 15 NCAC 31.0007(6).
               qualify for an exemption to this rule if it can meet
               specific criteria set out in Section 1536(h)).



               Ocean Resources Planning - Page 22










                                                                                         Mining for solid or hard minerals in the
                                                                                coastal ocean off North Carolina's shoreline is a
                                      CTI                                       possibility within the foreseeable future. Signifi-
                                                                                cant deposits of oceanic sand, gravel and phos-
                                        IN                                      phate have been identified. Interest in mining
                                                                                these resources will increase as land deposits be
                                                                                come more difficult to access and the technology
                                                                                improves for extracting solid minerals from sub-
                                                                                merged land. Mining for titanium, though at one
                                                                                1ime considered a possibility, is not likely in the
                                                                                foreseeable future.


                                                                                         To date, there has been limited interest in
                                                                                marine mining in state and federal waters, prima-
                                                                                rily because land-based supplies are readily avail-
                                                                                able. But there are other reasons: (1) depressed
                                                                                market prices relative to the higher costs ofmarine
                                                                                mining, (2) uncertainty in the legal/regulatory re-
                                                                                gime, (3) environmental concerns, (4) uncertainty
                                                                                with respect to seabed mineral resource potential
                                                                                and (5) the need for technological developments in
                                                                                resource extraction or environmental monitoring.
                                                                                [11 As these conditions change, there could be an
                                                                                increased interest in marine mining. North Caro-
                                                                                lina must be prepared to meet the significant
                                                                                challenges presented by a desire to extract re-
                                                                                sources from state and federal submerged lands.

                                                                                         There are significant deposits of sand,
                                                                                gravel and phosphate in the coastal ocean offNorth
                                                                                Carolina's shoreline. The pressure to mine these
                                                                                resources will increase. One ofthe driving forces to
                  CIO                                                           mine for oceanic sand will be the state's eroding
                                                                                shoreline. The average erosion rate is just under 4
                                                                                feet per year, with some developed beaches eroding
                                                                                at an annual rate of more than 10 feet. Beach
                                                                                nourishment - bringing in sand from an outside
                                                                                source - is one of a few allowable ways for ocean-
                                                                                front communities and property owners to protect
                                                                                shoreline structures. Beach nourishment is likely
                                                                                to remain a preferred option since alternatives
                                                                                such as seawall construction - a practice no longer
                                                                                allowed along North Carolina's oceanfront shore-
                                                                                line - can lead to the loss of the public beach.
                                                                                Consequently, as erosion continues there could be
                                                                                increased pressure to look to oceanic sand re-
                                                                                sources for beach nourishment.

                                                                                         The rapid rate of development and con-
                                                                                struction in North Carolina's coastal area might be
                                                                                another driving force to mine for sand and gravel.
                                                                                Between 1980 and 1990, the growth rate for the
                                                                                Albemarle-Pamlico Estuarine Study area aver-
                                                                                aged 15.5 percent. The statewide estimate for the
                                                                                same area and time period is 12.5 percent. [21 The
                                                                                growth rate for oceanfront and soundfront coun-
                                                                                ties is greater, with some counties -Dare, Carteret
                                                                                and Currituck - experiencing growth rates 2.5


                                                                                             Ocean Resources Planning - Page 23










              times higher than the state's. Since sand and                          Without special legislation to the contrary,
              gravel are major components of most construction              it is doubtful that local government has the ability
              activities (including road construction), demand              to regulate development in ocean waters. How-
              for these resources will continue to increase with            ever, cities and counties clearly have the authority
              the rate of growth. Along with an increase in                 to regulate activities on land adjacent to the ocean.
              demand will be pressure to extract sand and gravel            This power can be used to encourage or discourage
              from local areas, including the ocean adjacent to             solid mineral extraction by allowing, limiting or
              many of these rapidly growing communities. De-                disallowing supporting land-based activities.
              mand for local sand is directly related to its low
              unit value and high transportation cost. If sand is                   The Mining Act of 1971 and the
              not produced and marketed locally, construction                        North Carolina Mining Permit
              costs could escalate greatly. [31 The demand for
              sand and gravel for construction, coupled with                         The Mining Act of 1971 finds that mining
              economic forces, could result in pressure to mine             is a "basic and essential activity making an impor-
              oceanic sources.                                              tant contribution to the economic well-being of
                                                                            North Carolina and the nation." The act further
                      Large deposits of phosphate in the sub-               states that "it is possible to conduct mining in such
              merged lands in North Carolina's coastal ocean                a way as to minimize its effects on the surrounding
              (Onslow Bay) may become more attractive as land               environment." [41 The remainder of the act and its
              sources are depleted. Texasgulf Corp. currently               accompanying regulations outline the procedure
              has a large land-based phosphate mine in Beaufort             for assessing the impacts of a proposed mining
              County and holds a mining lease to state-owned                activity so that the goals of economic development
              submerged lands in the adjacent Pamlico River. As             and environmental protection can be realized.
              land-based deposits are depleted, interest may
              escalate in deposits located under wetlands, the                       Mining of submerged lands under North
              Pamlico River or the Atlantic Ocean.                          Carolina's coastal ocean was not fully contem-
                                                                            plated in 1971. Consequently, the act and its regu-
              Extraction of Solid Minerals                                  lations are designed to assess the impacts of land-
              in State Waters                                               based mining and give little attention to the im-
                                                                            pacts of mining underwater.
                      The Mining Act of 197 1, the Coastal Area                      Under the act, mining is defined as "the
              Management Act of 1974 (CAMA) and North Caro-                 breaking of the surface soil in order to facilitate or
              lina laws governing the disposition of state lands            accomplish the extraction ... of minerals, ores,
              are the most pertinent pieces of state legislation            soils, and other solid matter from its original loca-
              regarding the potential extraction of hard miner-             tion." [51 Minerals are defined as "soil, clay, coal,
              als from the coastal ocean. Other' relevant state             stone, gravel, sand, phosphate, rock, metallic ore,
              laws include the Sedimentation and Pollution Con-             and any other solid material or substance of com-
              trol Act, the Environmental Policy Act and the                mercial value found in natural deposits or in the
              water quality laws as adopted and administered by             earth." [6] Even though this appears to be a com-
              the Environmental Management Commission and                   prehensive definition that would include the ex-
              Division of Environmental Management.                         traction of sand, gravel and phosphate from North
                      Even though the state owns the submerged              Carolina's coastal ocean, there are several excep-
              lands under the territorial sea, the federal govern-          tions both in law and in practice. The act excludes
              ment retains concurrent authority to regulate them.           from the definition: (1) deep mining not having a
              As a result, the federal government can regulate              significant effect on the surface; (2) any area where
              certain activities related to the extraction of solid         the affected land does not exceed 1 acre in area; (3)
              minerals in state waters. Federal laws that may be            the removal of "overburden" and the mining of
              relevant to North Carolina's coastal ocean are the            "limited amounts" of ores or minerals when done
              Clean Water Act; Coastal Zone Management Act;                 for purely exploratory reasons, provided that the
              Endangered Species Act; Marine Mammal Protec-                 minerals or ores are not sold and the affected land
                                                                            does not exceed I acre. [71 In addition to these
              tion Act; Marine Protection, Research and Sanctu-             exceptions, no mining permits are currently        . re-
              aries Act; Rivers and Harbors Act of 1899; and, to            quired to excavate sand (for beach nourishment) or
              a limited degree, the Magnuson Fishery Conserva-              dredge material from access channels, even though
              tion and Management Act.                                      they may have a commercial value'and their re-
                                                                            moval may have an environmental impact. This is
                                                                            true regardless of the size of the area affected.

              Ocean Resources Planning - Page 24










                                                                                          development activity in two CAMA areas of envi-
                                To assist in administering the Mining Act,                ronmental concern (AECs) - estuarine and public
                      the General Assembly created the N.C. Mining                        trust waters - a CAMA permit would be required.
                      Commission and empowered it to make mining                          Major development permits are necessary for ac-
                      regulations. [81 The commission is within the                       tivities that require permission, licensing, approval,
                      Department of Environment, Health and Natural                       certification or authorization from any state or
                      Resources (DEHNR) and is staffed by the Land                        federal agency; occupy a ... water area in excess of
                      Quality Section of the Division of Land Resources.                  20 acres; contemplate drilling or excavating natu-
                      The governor appoints the nine-member commis-                       ralresources ... underwater.... [13] Based on this
                      sion. [91                                                           language, mineral extraction activities would likely
                                                                                          require a CAMA major development permit. The
                                The Mining Commission has adopted sev-                    permit invokes a review process that would solicit
                      eral regulations to administer the act. These estab-                comments from other state and federal agencies
                      lish procedures for obtaining mining permits, in-                   and would weigh the activity against general and
                      cluding requirements for bonds, land reclamation                    specific use standards for the estuarine waters and
                      plans and processing fees. Much like the Mining                     public trust AECs. To be permitted, the mining
                      Act, the mining regulations have a land focus and                   activity must be water-dependent and consistent
                      give little attention to the concerns that might                    with the applicable use standards. The only excep-
                      arise from miningminerals from submerged lands.                     tion is when a proposed project will have public
                      For example, the permit application requires land-                  benefits that clearly outweigh the long-range ad-
                      specific information that may not be sufficient for                 verse effects, no reasonable and prudent alternate
                      the Division ofLand Resources to assess an aquatic                  site is available for the project, and all reasonable
                      mining proposal. [10] The regulations also require                  means and measures to mitigate adverse impacts
                      any operator seeking to mine to post a performance                  have been incorporated into its design.
                      bond. Bond amounts can range from $500 to $5,000
                      per acre, based on the estimated costs of post-                              The general and specific use standards for
                      mining land reclamation. [111 One could argue                       the estuarine waters and public trust AECs focus
                      that these amounts are not sufficient to cover the                  on activities likely to occur in and along the sounds
                      potential difficulties and liabilities associated with              and coastal rivers - not within the coastal ocean.
                      mining minerals from the state's submerged Ian ds.                  There are no specific standards for ocean mining,
                                                                                          nor are there any under other use standards that
                                Based on the Mining Act and the regula-                   could adequately assess a mining proposal. The
                      tions adopted by the commission, the Division of                    general use standards do contain some -language
                      Land Resources has developed an application form.                   protecting public trust rights and conserving the
                      The form requests specific information about the                    biological integrity of estuarine waters, but with-
                      required reclamation plan. Again, the type ofinfor-                 out specific ocean-oriented standards, this is un-
                      mation requested may not be adequate to deter-                      likely to lead to an adequate review.
                      mine whether a reclamation plan of mined sub-
                      merged land is adequate to remedy environmental                      The Sedimentation Pollution Control Act
                      disturbances.                                                                               of 1973

                       CAMA - The Extraction of Solid Minerals                                     The Sedimentation Pollution Control Act
                                  as a Development Activity                               recognizes that sedimentation of North Carolina's
                                                                                          waters constitutes a major pollution problem. [14]
                                The extraction of minerals (sand, gravel                  The act establishes mandatory standards and di-
                      and phosphate) from submerged lands under North                     rects the Sedimentation Control Commission to
                      Carolina's coastal ocean would constitute develop-                  use them to regulate erosion and sedimentation
                      ment as defined by CAMA. Development includes:                      from land-disturbing activities. [151

                                Any activity involving, requiring or                               The act and regulations, however, do not
                                consistingofthe ... excavation; dredg-                    apply to activities governed by the state's Mining
                                ing; filling; dumping; removal ofclay,                    Act. The act specifically excludes agriculture, for-
                                silt, sand, gravel or minerals; (or) ...                  estry and mining from land-disturbing activities
                                alteration of the ... bottom of the At-                   covered by the law. As a consequence, more stock
                                lantic Ocean. [121                                        must be placed on the state's Mining Act and
                                                                                          CAMA as the means for assuring that sedimenta-
                                Since extraction of minerals would be a                   tion from ocean mining is adequately controlled.


                                                                                                        Ocean Resources Planning - Page 25










                      Regardingthe excavation/pumpingofsand                 regulations for the discharge of wastewaters into
             for beach nourishment (an activity that has raised             the Atlantic Ocean. [221 The Environmental Man-
             some concerns about sedimentation), current prac-              agement Commission and Division of Environ-
             tice does not require a mining permit even though              mental Management may want to review the EPA
             it appears to fall under the Mining Act's authority.           regulations to determine if they are sufficient to
             If beach nourishment is indeed a mining activity,              cover the types of concerns that could arise from
             it is exempt from the Sedimentation Pollution                  mineral extraction.
             Control Act. If not, then the act should apply.                     Laws and Procedure Governing the
                         State Water Quality Laws                                    Disposition of State Lands -
                      The federal Clean Water Act allows indi-               The Leasing of State Submerged Property
             vidual states to set up their own water quality                                 for Ocean Mining
             programs so long as they are consistent with fed-                       All land and ocean waters from the mean
             eral guidelines.                                               high tide to the end of state jurisdiction at three
                                                                            miles is owned and held in trust by the state of
                      In 1974, the U.S. Environmental Protec-               North Carolina. The state has stewardship respon-
             tion Agency (EPA) gave North Carolina the au-                  sibility for these submerged lands and must see
             thority to coordinate its water quality manage-                that any disposition does not violate public trust
             ment program. Consequently, the state Legisla-                 rights. Public trust rights are established by com-
             ture adopted laws that outline North Carolina's                mon law and are interpreted and refined by state
             water quality strategy. Most of these laws can be              courts. They include, but are not limited to, the
             found in Chapter 143, Article 21, Part 1 of the N.C.           public's right "to navigate, swim, hunt, fish and
             General Statutes (laws regarding oil pollution,                enjoy all recreational activities in the waters of the
             litter and solid waste are found in other sections             state...." [231
             and are addressed separately in this report). These
             laws established the N.C. Environmental Manage-                         The N.C. Department of Administration,
             ment Commission (staffed by the Division of Envi-              subject to rules and regulations adopted by the
             ronmental Management) and gave it the authority                governor and approved by the Council of State, is
             to adopt water quality classifications for the state's         responsible for managing, controlling and dispos-
             waters and standards for each classification. [161             ing of lands owned by the state. Regarding the
             The commission has developed classifications and               disposition of submerged lands, the department's
             standards for both fresh and tidal waters. [171 In             authority is limited. It is prohibited from selling
             line with the federal act, discharges are only al-             submerged lands. (241 The Department ofAdmin-
             lowed if they do not violate water quality stan-               istration can grant easements to these lands to
             dards. A state permit process is in place to deter-            riparian owners and, according to a recentjudicial
             mine the impact of a discharge. [181 It should also            decision, may even be required to do so in some
             be noted that Section 401 of the Clean Water Act               situations. It can also lease state submerged lands
             requires all applicants for federal licenses or per-           for certain purposes, including the extraction of
             mits to obtain a state water quality certification for         minerals. Administratively, easement and lease
             any activity that may discharge into state waters.             decisions are handled by the department's State
                                                                            Property Office.
                      Solid mineral extraction from the ocean
             has the potential for water quality impacts. De-                        N.C. General Statute 146-8 gives the De-
             pending on the type of operation, waste discharges             partment of Administration the power to lease
             could emanate from numerous sources. The statu-                state submerged lands for the purpose of selling,
             tory definition of waste is broad, including sewage,           leasing or otherwise disposing of mineral deposits
             industrial waste, toxic waste and others that may              belonging to the state. Leases are granted at the
             be discharged or placed in such proximity to the               request of DEHNR. Applications for mining per-
             water that drainage may reach the water. [19] The              mits are submitted to the Land Quality Section of
             definition of discharge includes the "discharge,               the Division of Land Resources, DEHNR. The
             spillage, leakage, pumping, placement, emptying,               request is then forwarded from DEHNR to the
             or dumping into waters of the state ... ." [201                Department of Administration, which negotiates
             Currently, however, any discharge into the Atlan-              the lease terms with the permittee. It is unclear
             tic Ocean is prohibited by law unless permitted by             from the statute whether this request is forwarded
             Environmental Management Commission regula-                    prior to or after permit approval.
             tion. (21] In 1983, the commission adopted EPA



             Ocean Resources Planning - Page 26









                             The Department of Administration is au-               prepared for publicly funded actions, including
                     thorized to set lease terms and conditions that it            actions involving the use ofpublic lands (emphasis
                     deems wise and expedient for the state's best                 added), that might significantly affect the environ-
                     interest. However, before any lease becomes bind-             ment. [251 An environmental impact statement
                     ing, it must be approved by the Department of                 includes: (a) the environmental impact of the pro-
                     Administration, the governor and the Council of               posed activity, (b) any significant adverse environ-
                     State. The gross payment from a lease, sale or                mental effects that cannot be avoided should the
                     other disposition of mineral deposits is placed into          proposal be implemented, (c) mitigation measures
                     the treasury to be used exclusively by DEHNR to               proposed to minimize the impact, (d) alternatives
                     develop and conserve the natural resources of the             to the proposed action, (e) the relationship between
                     state (after the subtraction ofadministrative costs).         the proposed short-term uses of the environment
                     To date, Texasgulf Inc. holds the only mining lease           and the maintenance and enhancement of long-
                     to submerged lands in North Carolina. Texasgulf               term productivity, and (f) any irreversible and
                     holds a lease to 9,209 acres of submerged land                irretrievable environmental changes resulting from
                     under the Pamlico River in Beaufort County. The               the proposed action, should it be implemented.
                     original lease was granted in 1967 and contained
                     an automatic renewal clause. The company re-                          Since mineral extraction from state wa-
                     newed its lease in 1992 for another 25 years. There           ters would involve the use of public lands and
                     is an estimated 20,000 to 30,000 tons of phosphate            possibly public funds, a state environmental im-
                     per acre in the lease area.                                   pact document would be required. The term "ex-
                                                                                   penditure of public funds" has been interpreted
                             In making lease     decisions, the Depart-            broadly and includes public monies expended for
                     ment of Administration relies on other state agen-            infrastructure development. If the environmental
                     cies to consider the public trust and environmental           impact document indicates that the project will
                     impacts of mining activities. N.C. General Statute            have an environmental impact and there is no
                     146-8 does require that any sale, lease or other              appropriate alternative, the governor decides
                     disposition of mineral deposits be made subject to            whether the project will go forward. [261
                     all rights of navigation (an identified public trust
                     right) and subject to state-imposed terms and con-            The Concurrent Application of Federal Law
                     ditions. Despite this language, the Department of                     in State Jurisdictional Waters
                     Administration has traditionally deferred public
                     trust considerations to the Division of Coastal                       Under the federal Submerged Lands Act,
                     Management in DEHNR. The Division of Coastal                  the state owns the submerged lands under the
                     Management administers public trust standards                 territorial sea, but the federal government retains
                     developed by the state's Coastal Resources Com-               concurrent regulatory authority over them. [271
                     mission under the authority of CAMA. A recent                 As a result, the federal government continues to
                     Court of Appeals decision may call into question              regulate certain activities in North Carolina's ju-
                     the Department ofAdministration's practice of de-             risdictional waters. For example, the Rivers and
                     ferring public trust considerations. That decision,           Harbors Act (Section 10) and Clean Water Act
                     Walker et al. v. Coastal Resources Commission,                (Section 404) permits are required for mining and
                     111 N.C. App. 851,433 S.E. 2d 767 (1993), suggests            shipboard processing in state and federal waters.
                     that the department may have some public trust                In addition, an ocean dumping permit under Sec-
                     responsibilities when the impacts of an activity on           tion 103 of the Marine Protection, Research and
                     state property and in state waters has a substan-             Sanctuaries Act may be required. The U.S. Army
                     tial impact on public trust rights. Even though this          Corps of Engineers administers these permit pro-
                     decision involved an easement question, the logic             grams.
                     could be extended to require the Department of
                     Administration to develop public trust standards                      Apermit applicant does not generally need
                     (or at a minimum, reference the Coastal Resources             other required state, local or federal permits in
                     Commission's public trust standards) and apply                hand before applying for Corps of Engineers per-
                     them in its decisions to grant easements or to lease          mits. However, if one of the other needed permits
                     state submerged lands.                                        is denied before the corps takes final action on its
                                                                                   permits, the corps permits will be denied. The
                     North Carolina's Environmental Policy Act                     Corps ofEngineers considers comments from other
                                                                                   agencies with jurisdiction over or interest in the
                             As reviewed in Section 3 of this report,              proposed activity even ifno permit is required from
                     North Carolina's Environmental Policy Act re-                 the commenting agency. [281
                     quires that an environmental impact document be


                                                                                                Ocean Resources Planning - Page 27










                       In addition to the permits that are re-                       The second set of regulations outlines the
             quired under the Clean Water Act and the Rivers                lease sale process. [32] Sales may be initiated by
             and Harbors Act, mining activities in state waters             the secretary or by an unsolicited request for a
             are governed by the Marine Mammal Protection                   lease sale. All sales must be preceded by a proposed
             Act and the Endangered Species Act. It should be               leasing notice and an actual leasing notice. These
             noted that the Clean Water Act, the Endangered                 notices outline lease size, duration, environmental
             Species Act and the Marine Mammal Protection                   concerns and financial considerations. States, in-
             Act are all up for reauthorization in 1994 in the              dustry, other federal agencies and the public are
             U.S. Congress.                                                 given opportunity to comment on the terms and
                                                                            conditions of a sale. The secretary or governor of an
             Mineral Extraction in Federal Waters                           adjacent state may initiate a request to establish a
                                                                            joint state/federal task force to plan or consult on
                The Outer Continental Shelf Lands Act                       lease sales. Also, an environmental impact state-
                                                                            ment will be required under the National Environ-
                      The Outer Continental Shelf Lands Act                 mental Policy Act for a proposed sale.
             established federal jurisdiction over submerged                         The rules allow two bidding procedures -
             lands on the outer continental shelf(OCS) seaward              sealed and oral bidding. For the successful bidder,
             of state boundaries. [291 Under this act, the secre-           the rules outline rental/royalty procedures. Re-
             tary of the Department of Interior administers                 duced royalties are allowed early in the lease
             mineral exploration and development of the OCS.                period, presumably to reduce the operation start-
             The secretary has designated the Minerals Man-                 up burden.
             agement Service to administer mineral leases on
             submerged OCS lands and to supervise offshore                           The third set of regulations outlines post-
             operations after the lease is issued. Two separate             lease obligations. [331 These include establishing
             mineral exploration, leasing and development pro-              requirements for environmental surveys; monitor-
             grams have been established for the OCS - one for              ing programs; inspections of operations; bonding
             oil, gas and sulphur [discussed in Section 51 and              requirements; and the review and approval of
             another for all other minerals. [301                           delineation, testing and mining plans and lease
                      The Minerals Management Service ad-                   operations. It should be noted that an additional
             ministers three sets of regulations for the explora-           environmental impact statement under the Na-
             tion, leasing and development of minerals other                tional Environmental Policy Act could be required
             than oil, gas and sulphur.                                     for activities proposed for the lease.
                       The first set of regulations outlines the             Federal Coastal Zone Management Act -
             prospecting/exploration procedures. [311 It re-                    How the State Might Influence Mineral
             quires a permit for any activity conducted for                    Extraction Activities in Federal Waters
             commercial purposes. Prospecting permits are is-
             sued for three years with an option for renewal.                        Under Section 307 of the Coastal Zone
             Permit applications must conta    in detailed descrip-         Management Act, activities (such as mineral ex-
             tions and schedules for the proposed activities, a             traction) in federal waters that affect any land or
             prospecting plan and an indication of data and                 water use or natural resource of the state's coastal
             information that is considered proprietary. A copy             zone must be consistent with the enforceable poli-
             of the application must be supplied to the gover-              cies of the affected state's coastal management
             nors *of adjacent states before planned prospecting            program. Failure to satisfy this consistency re-
             activities can begin. An environmental assessment              quirement will generally result in denial of federal
             under the National Environmental Policy Act may                permits or licenses. The requirement gives coastal
             be required for prospecting/exploration activities.            states a tool to influence permitting activities in
             Scientific research may be conducted without ob-               federal waters. The power of the tool, however,
             taining a permit if the proposed activities will not:          depends largely on the strength of the state's
             (1) interfere with or endanger existing leases or              enforceable polices in its own coastal ocean.
             rights-of-way, (2) be unduly harmful to aquatic life,
             (3) create hazardous or unsafe conditions, or (4)                       The Coastal Zone Management Act de-
             interfere with other uses and users of the area.               fines enforceable policies as "state policies that are
             However, if explosives or the drilling of boreholes            legally binding through constitutional provisions,
             greater than 300 feet deep are part of the research            laws, regulations, land-use plans, ordinances or
             endeavor, a permit will be required.                           judicial decisions by which a state exerts control


             Ocean Resources Planning - Page 28










                      over private and public land and water uses and                 information needed for solid mineral extraction
                      natural resources in the coastal zone." North                   from the seabed. For example, reclamation plans
                      Carolina's CAMA (including its use standards for                should be tailored for ocean mining and the size of
                      development), the Mining Act and the other state                performance bonds should be increased to reflect
                      laws and regulations already discussed are en-                  the greater environmental risks associated with
                      forceable state policies with regard to the extrac-             mining at sea.
                      tion of hard minerals from the coastal ocean; Con-
                      sequently, any inadequacies in these laws could                          In amending its regulations, the Mining
                      weaken the state's ability to control activities in             Commission and its staff should work closely with
                      federal waters. For example, if North Carolina                  the Coastal Resources Commission and its staff.
                      exempts from the Mini.ng Act exploratory mining                 This is particularly necessary when the regula-
                      operations in state waters, it may find it difficult to         tions developed by the two commissions attempt to
                      successfully object on the grounds of consistency               address the same or similar issues. One example
                      when similar mining activities are proposed in                  would be the Mining Commission's reclamati          .on
                      federal waters.                                                 standards and the Coastal Resources Commission's
                                                                                      mitigation standards.
                      Recommendations
                                                                                               B. Review the Mining Act's exemption of
                               1. The task force should recommend to the              activities involving less than I acre and explor-
                      Division of Coastal Management and the Coastal                  atory operations in light of the federal Coastal
                      Resources Commission that:                                      Zone Management Act's consistency determina-
                                                                                      tion. Would North Carolina's position be weakened
                               A. They amend the present regulatory                   in finding an exploratory operation in federal wa-
                      guidelines to make the estuarine waters and public              ters inconsistent with the state's coastal manage-
                      trust AECs more responsive to mineral extraction                ment program because of these exemptions?
                      activities, including sand extraction for beach
                      renourishment projects.                                                  III. The task force should recommend that
                                                                                      the Environmental Management Commission as-
                               The Division of Coastal Management has                 sess EPA!s ocean discharge criteria to determine
                      prepared a draft policy for oil and gas exploration             whether they are sufficient to cover the concerns
                      and development [see Appendix 6]. This document                 that could arise from mineral extraction at sea [see
                      provides a good model for developing policies for               Section 7 for a more detailed discussion].
                      the extraction of solid minerals. In developing
                      draft policies, the Division of Coastal Management                       IV. The task force should recommend to
                      and Coastal Resources Commission should work                    the Department of Administration and Council of
                      closely with the.Division of Land Resources and                 State that the state's current leasing structure be
                      the Mining Commission.                                          reviewed and revised. The department and the
                                                                                      council should address the issues of competitive
                               B. North Carolina should continue to par-              bidding, rents and royalties, environmental re-
                      ticipate in the federal OCS program. Pressure to                porting, compliance and enforcement. Lease con-
                      extract minerals from the OCS is likely to increase'            tracts should carry pubic trust and environmental
                      North Carolina must be in a position to respond to              protection conditions and should be made revo-
                      this pressure. The state should also prepare to join            cable on condition of violation.
                      with the federal government to create a joint task
                      force (as allowed by the Outer Continental Shelf                         Additional monies collected through lease
                      Lands Act) should there be a proposal to lease OCS              fees or royalties should continue to be used for state
                      submerged lands. To accomplish these objectives,                conservation efforts. For example, fees or royalties
                      the Division of Coastal Management should main-                 collected for phosphate extraction could be channeled
                      tain staff capability to respond to federal actions.            to farmers to continue the use of best management
                                                                                      practices that reduce nonpoint runoff of phosphate
                               II. The task force should also recommend               enriched fertilizers into coastal waters.
                      to the Division of Land Resources and Mining
                      Commission that they:

                               A. Amend the regulations developed by
                      the Mining Commission and the application proce-
                      dure and requirements developed by the Division
                      of Land Resources to anticipate the additional


                                                                                                    Ocean Resources Planning - Page 29









             Footnotes                                                      [221 15A NCAC .02H .0400(d). EPA!s ocean dis-
                                                                            charge criteria can be found at 40 CFR 125.120-
             [11 U.S. Outer Continental Shelf Sand and Gravel               125.124.
             Resources: ProL-rams, Issues and Recommenda-                   [231 GS 1-45.1.
             ligm, Final Report ofthe OCS Policy Committee on
             OCS Sand and Gravel Resources, April 1993.                     [241 GS 146-3.
             [21 Albemarle-Pamlico Estuarine Study, Status                  [251 GS 113A-1- 113A-10. See Mullin v. Skinner,
             and Trends Report, 198.9.                                      756 F. Supp. 904 (E.D.N.C. 1990).
             [3) OCS Policy Committee Report on Sand and                    [261 GS 113A-5.
             Gravel Resources.
             [41 GS 74-47.                                                  [27143 U.S.C.A. 1301 et seq.
             [51 GS 74-49(7).                                               [28133 CFR 320.40).
             [61 GS 74-49(6).                                               Normally, the Corps of Engineers will not issue a
                                                                            permit for an activity that affects a state's coastal
             [71 GS 74-49(7).                                               zone unless the applicant certifies to the district
                                                                            engineer that the proposed activity is consistent
             [81 GS 143B-290. In addition to its power to make              with the state's coastal zone management pro-
             rules for administering the MiningAct, the Mining              gram. [33 CFR 320.3(b), 320.4(h) and 325.2(b)(2)(ii)]
             Commission has the following powers and duties:                After the district engineer receives the certifica-
             to hear (mining) permit appeals, conduct a full and            tion, the state coastal zone management agency
             complete hearing on such controversies and af-                 will be asked to concur or object to the certification
             firm, modify or overrule permit decisions made by              ofconsistency. Ifthe state finds that further review
             DEHNR pursuant to GS 74-61.                                    is needed, the corps will not issue the permit until
                                                                            the state concurs that the activity is consistent
             [91 GS 143B-291.                                               with its coastal zone management program. Con-
                                                                            sistency is a powerful tool that North Carolina can
             [101 15A NCAC 5B.0004-.0005.                                   use to control and manage activities proposed for
                                                                            federal waters.
             [111 15A NCAC 5B.0003.                                         However, if the secretary of commerce determines
             [121 GS 113A-103(5).                                           that the proposed activity is consistent with the
                                                                            purposes of the federal Coastal Zone Management
             [131 GS 113A-118(d).                                           Act or is necessary in the interests of national
                                                                            security, then the corps may issue the permit over
             [141 GS 113A-51.                                               state objections.
             [151 GS 113A-54 and 15A NCAC 4A-E.                             [291 43 U.S.C. 1331 et seq.
                                                                                                  '  .                                              1
             [161 GS 143-214.1.                                             [301 Section 8(k) ofthe act authorizes the secretary
                                                                            to lease any minerals - other than oil,'gas, sul-
             [171 15A NCAC .02B .0211-.0212.                                phur - on the OCS on the basis of competitive
                                                                            bidding under such terms and conditions as maybe
             [181 GS 143-215.1.                                             prescribed at the time of offering the area for lease.
             [191 GS 143-213(18).                                           [311 30 CFR 280.
             [201 GS 143-213(9).                                            [321 *30 CFR 281.
             [211 GS 143-214.2.                                             [331 30 CFR 282.





             Ocean Resources Planning - Page 30









                                                                                            Geologic features indicate the possibility
                                                                                   of oil and gas deposits within 100 miles of North
                                                                                   Carolina's shoreline. The current regulatory re-
                                                                                   gime for oil and gas activities in federal waters
                                                                                   includes: the Coastal Zone Management Act, Outer
                                                                                   Continental Shelf Lands Act, National Environ
                      L                                                            mental Policy Act, Clean Water Act, Oil Pollution
                                                                                   Act (including the Outer Banks Protection Act),
                                                                                   Marine Mammal Protection Act, Endangered Spe-
                                                                                   cies Act and Resource Conservation and Recovery
                                                                                   Act. To a more limited degree, the Clean Air Act,
                                                                                   National Historic Preservation Act and Ports and
                                                                                   Waterways Safety Act may also be applicable.

                                                                                            The current regulatory regime for oil and
                                                                                   gas activities in state waters includes the above
                                                                                   federal statutes where applicable and the federal
                                                                                   Submerged Lands Act. Also included are the fol-
                                                                                   lowing state controls: the Coastal Area Manage-
                                                                                   ment Act (CAMA); N.C. Environmental Policy Act;
                                                                                   statutes authorizing the Department of Environ-
                                                                                   ment, Health and Natural Resources (DEHNR) to
                                                                                   review and prohibit exploratory operations where
                                                                                   environmental conditions warrant; statutes and
                                                                                   regulations governing ocean discharges; statutes
                                                                                   controlling the lease of state lands; and the Oil
                                                                                   Pollution and Hazardous Substances Act. Even
                                                                                   though there is little potential for gas and oil
                                                                                   deposits in North Carolina's submerged lands, the
                                                                                   enforceable policies that govern these waters can
                                                                                   be used in consistency determinations for activi-
                                                                                   ties proposed for federal waters.

                                                                                   Introduction


                                                                                            In September 1988, North Carolina got a
                                                                                   wake-up call that oil and gas exploration and
                                                                                   exploitation could become a reality in the ocean
                                                                                   waters off its shore. In 1981, at a cost of $103.8
                                                                                   million, a consortium of oil companies acquired
                                                                                   exploration and development rights from the fed-
                                                                                   eral government to a 9-square-mile area of the
                                                                                   Atlantic Ocean known as Block 467. Seven years
                                                                                   later, Mobil Oil and its partners notified North
                                                                                   Carolina that they intended to submit an explora-
                                                                                   tion plan to the federal government to drill a well
                                                                                   in submerged lands about 32 miles east of Salvo.
                                                                                   The proposed well was in 2,690 feet of water with
                                                                                   a depth estimated at 14,000 feet below sea level.
                                                                                   Mobil's geologic evidence indicated a 10 percent
                                                                                   chance of discovering commercially recoverable
                                                                                   quantities of natural gas (possibly as much as 5
                                                                                   trillion cubic feet) and a 1 percent chance of finding
                                                                                   oil. This was the beginning of a long and still
                                                                                   unresolved struggle between North Carolina and
                                                                                   the U.S. Department of Interior's Minerals Man-
                                                                                   agement Service over the wisdom of allowing oil
                                                                                   and gas exploration in these waters.

                                                                                                 Ocean Resources Planning - Page 31










                      A tool available to North Carolina for in-            several state statutes to guard against oil pollu-
             fluencing the oil and gas debate in federal waters             tion. The Oil Pollution Act substantially alters and
             is the consistency provision of the Coastal Zone               increases the liability to those who explore, pro-
             Management Act. Under the act, activities in fed-              duce and transport oil within the territorial seas
             eral ocean waters that affect any natural resource,            and the U.S. Exclusive Economic Zone. In July
             land or water use in North Carolina's coastal area             1989, North Carolina amended its Oil Pollution
             must be consistent with the enforceable policies of            and Hazardous Substances Act to more specifically
             the state's coastal management program. The state              address environmental hazards of offshore oil and
             exerts its enforceable policies over private and               gas activities. This amendment directed the devel-
             public land and water uses and natural resources.              opment of an oil spill contingency plan to deal with
             They are legally binding constitutional provisions,            the undersea exploration, extraction and produc-
             laws, regulations, land-use plans, ordinances or               tion ofoil and gas and their transport in the marine
             judicial decisions. Together, these policies make              environment.
             up the state's coastal management program.
                                                                            Jurisdiction
                      In 1990, the DEHNR, acting as an agent
             for the state, found that Mobil had not provided                        The Outer Continental Shelf Lands Act of
             sufficient information for determining consistency             1953, as amended in 1988, established federal
             with North Carolina's coastal management pro-                  jurisdiction over submerged lands on the outer
             gram. The state, in two separate decisions, based              continental shelf (OCS) seaward of state bound-
             its determination on insufficient information re-              aries. [4] Under the act, the secretary of the De-
             garding Mobil's proposed discharge permit and                  partment of Interior administers mineral explora-
             exploration plan. Mobil appealed to the secretary              tion and development on the shelf. The secretary
             of the U.S. Department of Commerce, who has                    has designated the Minerals Management Service
             legal authority to overturn the state's decision. The          as the agency responsible for administering min-
             secretary has yet to issue an opinion. In October              eral leasing of submerged OCS lands and supervis-
             1992, Mobil and 11 other oil companies filed a                 ing offshore operations after a lease is issued. As
             complaint for a breach of contract in U.S. Claims              noted in the previous section, the Minerals Man-
             Court. The companies are asking for a cancellation             agement Service administers two sets of regula-
             of their leases and a refund of some money paid to             tions - one for oil and gas development and one for
             the federal government for leases off the North                all other solid minerals. The oil and gas regulations
             Carolina coast. [11 The U.S. Department ofJustice              - found in the Code of Federal Regulations, Title
             filed a response in April 1994 and is awaiting a               30, Section 250 - outline the requirements for
             ruling on summary judgment. [21                                leasing, exploration and development.
                      Also in 1990, Congress passed the Outer                        The Submerged Lands Act of 1953 granted
             Banks Protection Act, creating a five-member en-               coastal states ownership of submerged lands and
             vironmental sciences review panel to determine                 natural resources to a point three miles from the
             the adequacy of information for assessing leasing              coast. [51 Consequently, North Carolina has au-
             and drilling proposals off North Carolina. In its              thority to control oil and gas exploration and ex-
             final report, issued January 1992, the panel recom-            ploitation within and directly under marine wa-
             mended a set of socioeconomic studies and a site-              ters out to three miles from its shore. Within this
             specific seafloor study before any exploratory drill-          area, the N.C. Department of Administration is
             ing. The seafloor study, completed March 1993 by               responsible for leasing state-owned submerged
             the Virginia Institute of Marine Sciences, con-                lands, and DEHNR has the authority to prohibit
             cluded that drill discharges from a single explor-             exploratory or production wells if environmental
             atory well would impact a small portion (less than             conditions warrant. [61
             2 percent) of the bottom community in the vicinity.
             The socioeconomic study is complete but has yet to             Leasing Procedures
             be released by Minerals Management Service. [31
                      In addition to the controversy surround-                       Federal Leasing Procedures
             ing Mobil's plans, another event in March 1989                          The Minerals Management Service in the
             contributed to growing concern about oil and gas               Department of Interior has the authority to lease
             exploration and production. On March 24, the                   offshore federal submerged lands. In carrying out
             Exxon Valdez oil tanker ran aground in Alaska,
             spilling 11 million gallons ofoil. This event precipi-         the leasing program, Section 18 of the Outer Con-
             tated the federal Oil Pollution Act of 1990 and                tinental Shelf Lands Act requires consideration of


             Ocean Resources Planning - Page 32









                      these factors: (1) the receipt of fair and equitable            roughly halfway between Cape Hatteras and Cape
                      return on oil and gas resources; (2) the preserva-              Lookout.
                      tion and maintenance of competition; (3) the bal-
                      ance of orderly energy resource development with                         Under the 1992-1997 program, 18 lease
                      the protection of human, marine and coastal envi-               sales are scheduled for 11 OCS planning areas. In
                      ronments; and (4) the rights and responsibilities of            the Atlantic Ocean, one sale combining the Mid-
                      all states and appropriate local governments to                 and South Atlantic is scheduled for late 1996.
                      preserve and protect their marine, human and                    Because of the unresolved situation with Mobil
                      coastal environments. [71 The Minerals Manage-                  and a congressional moratorium on offshore drill-
                      ment Service has developed the following leasing                ing for much of the United States, the Minerals
                      procedures in an attempt to address these factors.              Management Service has not initiated pre-lease
                                                                                      activities, including the Area Evaluation and Deci-
                               I. Federal pre-leasing procedures and                  sion Process. [121
                      opportunities for state involvement
                                                                                               IL Federal lease sales and opportunities
                               The Minerals Management Service has                    for state involvemen
                      developed a five-year OCS leasing program to set
                      the pace and scale of offshore development. Every                        Once the five-year plan has been approved
                      five years, the service develops a comprehensive                by Congress, the Minerals Management Service
                      program that identifies leasable areas and the                  moves ahead with the leasing process. At this
                      time when they will be offered. [81 As part of the              point, the governor of any affected state or the
                      1992-1997 leasing period, the Minerals Manage-                  executive of any affected local government may
                      ment Service modified its program in hopes of                   recommend to the secretary the timing, size or
                      encouraging earlier coordination and communica-                 location of a proposed lease sale. The secretary
                      tion. The modified program, called the Area Evalu-              must respond to the governor in writing, giving
                      ation and Decision Process, seeks to facilitate pre-            reasons for accepting, rejecting or modifying such
                      lease consensus among parties likely to be affected             recommendations. [131
                      by drilling activities (federal, state and local gov-
                      ernments; industry; and the public). [91                                 Once state concerns have been addressed,
                                                                                      the Minerals Management Service proceeds with
                               While a leasing program is being pre-                  lease offerings. Sealed bids are accepted for spe-
                      pared, the secretary of the Department of Interior              cific blocks. A block consists of about 9 square miles
                      must invite and consider suggestions from the                   (5,760 acres). Lease contracts are issued to the
                      governor of any affected state. Each governor re-               successful bidder, conveying certain rights and
                      ceives a copy of the proposed leasing program for               responsibilities. The contract grants the holder the
                      review and comment prior to its publication in the              right to drill and extract oil and gas from a particu-
                      Federal Register. The Outer Continental Shelf                   lar block. Of course, this right is contingent on
                      Lands Act requires the secretary to respond in                  other factors, particularly the consistency require-
                      writing to any governor's request for modification              ments of the federal Coastal Zone Management
                      of a proposed leasing program. Both state and local             Act. Normally, a leaseholder has five years to
                      governments may comment. [10)                                   conduct approved drilling or to produce oil or gas
                                                                                      before the lease expires. However, most leases off
                               Because five-year leasing programs are                 the North Carolina coast carry 10-year terms.
                      actions that could affect the environment, the                  Longer lease terms were found to be necessary
                      National Environmental Policy Act requires an                   because deep water at these drilling sites requires
                      environmental impact statement. [111 North Caro-                greater technological capabilities. [14]
                      lina can review and comment on the statement.
                      This provides another avenue, in addition to the                         With the reauthorization of the Coastal
                      Outer Continental ShelfLands Act, for the state to              Zone Management Act in 1990, states are able to
                      influence the leasing program in federal waters.                apply their coastal management programs to OCS
                                                                                      lease sales through the act's consistency provi-
                               To facilitate state participation in the leas-         sions. The reauthorization of the act effectively
                      ing process and to implement lease offerings on a               overruled Secret= of Interior v. California, 464
                      geographical basis, Minerals Management Service                 U.S. 313 (1984), which held that Section 307 (the
                      divided the OCS into 26 planning areas. North                   consistency section) does not apply to the lease sale
                      Carolina falls into two areas: the Mid-Atlantic and             phase of federal oil and gas leases because lease
                      the South Atlantic. The boundary between the two                sales do not "directly" affect the coastal zone. Also,
                      planning areas follows the 35th parallel, which is              as with the five-year program, individual lease


                                                                                                    Ocean Resources Planning - Page 33









              sales are considered actions that could adversely                lease area, conditioned upon due diligence require-
              affect the environment. Consequently, sales are                  ments and the approval of the development and
              subject to the environmental impact statement                    production plan." [171 Before either of these plans
              requirements ofthe National Environmental Policy                 can be submitted, however, an exploration plan
              Act. North Carolina can review and comment on                    (including any associated drilling permit) must be
              the development of the impact statement.                         approved by the secretary of the Department of
                       North Carolina Leasing Procedures                       Interior. [181
                                                                                             The Exploration Plan
                       Although it is highly unlikely that oil and
              gas resources are present under state submerged                           The first step in the post-lease, pre-extrac-
              lands (out to three miles), it is still important to             tion process is for the lessee to submit an explora-
              understand the leasing process for this area.                    tion plan to the Minerals Management Service and
                                                                               the state adjacent to the proposed activities. Adja-
                       N.C. General Statute 146-6 gives the De-                cent states can submit to the Minerals Manage-
              partment of Administration the power to lease                    ment Service comments and recommendations,
              state submerged lands for the sale, lease or other               which must be received within 20 days. The secre-
              disposal of mineral deposits (including oil and gas)             tary is required to approve the exploration plan
              belonging to the state. The department grants                    unless the "activity pursuant to such a lease or
              leases to state submerged lands at the request of                permit would probably cause serious harm or dam-
              DEHNR. Applications to extract oil and gas are                   age to life, property, to any mineral ... or to the
              submitted to the Division of Land Resources in                   marine, coastal or human environment." [191 In
              DEHNR. If the application is approved, DEHNR                     other words, rejection ofthe plan is not mandatory;
              forwards a request to the Department of Adminis-                 it is at the discretion of the secretary.
              tration, which negotiates the terms of the lease
              with the permittee. Although it is unclear from the                       In contrast, Section 1340 of the Outer
              statute, the applicant would likely need a valid                 Continental Shelf Lands Act forbids the secretary
              lease before a permit could be granted. In -other                from granting a "license or permit for any activity
              words, an applicant should hold an instrument                    described in an exploration plan and affecting any
              granting a legal right to occupy the land before a               land uses orwater uses in the coastal zone ofa state
              permit to engage in activity there is issued. [151               ..." if the state finds it inconsistent with its coastal
                                                                               management program. This language tracks the
                       The Department of Administration is au-                 consistency requirements ofthe Coastal Zone Man-
              thorized to set lease terms and conditions that it               agement Act. The secretary of the Department of
              deems wise and expedient for the state's best                    Commerce can overrule the state's consistency
              interest. However, before any lease becomes bind-                determination ifhe/she determines that the plan is
              ing, it must be approved by the governor, the                    consistent with the objectives of the Coastal Zone
              Council of State and Department of Administra-                   Management Act or is necessary for national secu-
              tion. The gross payment from a lease is deposited                rity. [201
              into the treasury to be used exclusively by DEHNR
              to develop and conserve the state's natural re-                           Since drilling is likely to be a part of the
              sources (after administrative costs are subtracted).             exploratory process, the secretary of the Depart-
              In making lease decisions, the Department of Ad-                 ment of Interior can require a permit to drill. Any
              ministration relies on other state agencies to con-              permit for drilling or geological exploration will be
              sider public trust and environmental impacts. There              issued only if the secretary determines that the
              is nothing in the statute that requires the depart-              operation will not unduly harm aquatic life or
              ment to include public trust and environmental                   unreasonably interfere with other uses of the area.
              considerations as lease terms and conditions. [161               [211

              Exploration, Development and                                              Section 250.33 ofthe Code ofFederal Regu-
              Production of Oil and Gas                                        lations outlines information required for explora-
                                                                               tion plans. This includes an accounting of poten-
              In Federa[Waters                                                 tially affected flora and fauna, environmentally
                                                                               sensitive areas and an assessment of direct and
                       A lease under the Outer Continental Shelf               cumulative offshore and onshore environmental
              Lands Act entitles the lessee "to explore, develop               impacts. Also, Section 250.33(b)(2) of the code
              and produce the oil and gas contained within the                 requires the applicant to submit an oil spill contin-
                                                                               gency plan with the exploration plan.

              Ocean Resources Planning - Page 34










                                                                                        facilities and the land, labor, material and energy
                                The federal Clean Water Act requires a                  requirements of the operation; (3) environmental
                      National Pollutant Discharge Elimination System                   safeguards and how they will be implemented; (4)
                      (NPDES) permit for discharges associated with                     safety standards and how they will be met; (5) an
                      exploratory activities. Adjacent coastal states may               expected rate of development and production and
                      review and comment on NPDES permit applica-                       a schedule for performance; and (6) any other
                      tions. States with approved coastal management                    relevant information that the secretary of interior
                      programs can also review discharge permits to                     may require by regulation. [25] The development
                      determine consistency.                                            and production plan must be accompanied by a
                                                                                        statement describing all proposed facilities and
                                The National Environmental Policy Act                   operations (other than those on the OCS) that will
                      does not usually require an environmental impact                  be built or used in developing and producing oil and
                      statement for exploration plans. However, an adja-                gas from the lease area. [261 Section 250.34 of the
                      cent state could attempt to force one through litiga-             Code of Federal Regulations details the require-
                      tion. The state would need to successfully argue                  ments for development and production plans. They
                      that the plan is a major federal action with the                  are essentially the same as those for exploration
                      potential to adversely affect the environment. A                  plans with the additional requirement of environ-
                      state might want to pursue this avenue if it feels                mental documentation to meet the threshold of an
                      there is insufficient information to go forward with              environmental impact statement pursuant to the
                      the development and production phase of the OCS                   National Environmental Policy Act. [27]
                      activity.
                                                                                                 Unlike exploration plans, activities pro-
                                The federal Endangered Species Act re-                  posed in development and production plans are
                      quires the denial of any action authorized by a                   likely to be deemed a major federal action, invok-
                      federal agencyifit is likely tojeopardize the contin-             ing the environmental impact statement require-
                      ued existence of an endangered or threatened spe-                 ments of the National Environmental Policy Act.
                      cies or to destroy or adversely modify its habitat.               In this case, the Minerals Management Service
                      [221 Consequently, any action associated with ex-                 will draft an environmental impact statement and
                      ploratory drilling, including discharges, must be                 make it available to the governor of any affected
                      reviewed under procedures outlined in the Endan-                  state for review. [281 Also, activities proposed in
                      gered Species Act [see Section 3 of this report for a             development and production plans shall not vio-
                      full discussion of these procedures].                             late the provisions of the Endangered Species Act
                                                                                        or the Marine Mammal Protection Act [see Section
                                Finally, the federal Marine Mammal Pro-                 3 of this report for a discussion of these acts].
                      tection Act prohibits the taking and importing of
                      marine mammals and their products. [231 The act                            The consistency requirement ofthe Coastal
                      defines taking as harassing, hunting, capturing or                Zone Management Act also applies to development
                      killing marine mammals (attempting any of these                   and production plans. The secretary shall not grant
                      actions is also included in the definition). Conse-               a license or permit for any activity affecting a land
                      quently, any intentional or incidental taking of                  use orwater use in the coastal zone ofa state unless
                      marine mammals in association with a drilling                     the state finds the activity consistent with its
                      operation is prohibited unless allowed through one                coastal management program. [291
                      of the act's exceptions [again, see Section 3 for a
                      discussion of the Marine Mammal Protection Act].                           In 1991, the N.C. Outer Continental Shelf
                                                                                        Office and Division of Coastal Management devel-
                           Development and Production Plans                             oped a draft OCS policy that could be incorporated
                                                                                        into the state's coastal energy policies. These poli-
                                Once an exploration plan is approved, a                 cies are part of the regulations developed under
                      drilling permit issued and the other requirements                 CAMA. The draft suggests regulatory changes
                      satisfied, exploratory operations can begin. If a                 that will better prepare state and local govern-
                      company finds oil or gas, it must submit a develop-               ments to respond to exploration, development and
                      ment and production plan before going forward.                    production plans in the federal OCS and to assess
                      [241                                                              associated energy facilities proposed for the state's
                                                                                        coastal land and water. The existing coastal energy
                                The development and production plan must                policies, including future modifications, are en-
                      set forth: (1) the specific work to be performed; (2)             forceable policies that can be used in consistency
                      a description of all facilities and operations on the             determinations for oil and gas activities proposed
                      OCS - including the location and size of the                      for the federal OCS [see Appendix 6 for a copy].


                                                                                                      Ocean Resources Planning - Page 35










                       The Oil Pollution Act of 1990                                   Under Section 2716 of the Oil Pollution
                                                                              Act, all responsible parties must establish and
                       The Oil Pollution Act of 1990 is the prin-             maintain sufficient financial responsibility to cover
              cipal federal legislation regarding oil pollution               the maximum amount of liability enforceable un-
              cleanup and liability. [30] Title II of the act states:         der the act. Section 2704 sets liability limits. For
                                                                              example, an offshore facility's liability shall not
                       Notwithstanding any other provision                    exceed the total of all removal costs plus $75-
                       or rule of law, and subject to the pro-                million. Liability limits are also set for deepwater
                       visions of this act, each responsible                  ports and for tank vessels. Limits to liability may
                       party for a vessel or a facility from                  be waived if an accident is caused by gross negli-
                       which oil is discharged, orwhich poses                 gence, willful misconduct or a violation of an appli-
                       the substantial threat of a discharge                  cable federal regulation. Limits may also be waived
                       of oil, into or upon the navigable wa-                 if a responsible party fails to report a discharge or
                       ters or adjoining shorelines or the                    fails to provide all reasonable cooperation and
                       Exclusive Economic Zone is liable for                  assistance. Section 2712 of the act also establishes
                       the removal costs and damages that                     the Oil Spill Liability Trust Fund to be used by the
                       result from the act.                                   president to clean up and remove oil spills and to
                                                                              monitor removal actions consistent with the Na-
                       A responsible party can be a private owner,            tional Contingency Plan.
              a vessel operator or lessee, an offshore or onshore                      Nothing in the Oil Pollution Act pre-empts
              facility, a deepwater port licensed under the                   a state or political subdivision from imposing addi-
              Deepwater Port Act of 1974 or a pipeline. Section               tional liability or requirements related to the dis-
              2702(b) of the Oil Pollution Act outlines the types             charge or removal of oil. Also, nothing in the act
              of costs and damages for which a responsible party              prevents a state from establishing its own fund to
              is liable. Basically, these include removal costs               cover costs and damages resulting from an oil spill.
              incurred by the federal government, a state or                  As will be discussed, North Carolina has estab-
              Indian tribe. Also included are costs incurred by               lished a liability strategy and has a fund to cover
              individuals for removal actions consistent with the             costs and damages from oil spills in state waters.
              Clean Water Act's National Contingency Plan.
              This plan coordinates the various public entities                        In conclusion, it should be noted that acts
              involved in a cleanup, the procurement and stor-                of God, acts of war or an act or omission of a third
              age of equipment and supplies, the establishment                party not employed by or an agent of the respon-
              of U.S. Coast Guard strike teams that deal with oil             sible party are complete defenses to liability.
              spills and other matters necessary to ensure a
              coordinated government cleanup. [311                                     Other federal statutes and regulations con-
                       Damages include those to natural re-                   tinue to be important and should be mentioned.
              sources, real or personal property, the loss of sub-,           The Comprehensive Environmental Response,
              sistence use of natural resources, loss of revenues,            Compensation and Liability Act of 1980 governs
              loss to profits or earning capacity, and damages                water pollution from nonpetroleum hazardous sub-
              associated with providing additional public ser-                stances. It pre-empts the Oil Pollution Act and the
              vices during or after removal activities. Develop-              Clean Water Act to the extent that either is incon-
              ing methods for assessing damages under the Oil                 sistent. [321
              Pollution Act has been controversial, particularly                       Except for liability provisions covered by
              the methods for measuring damages to natural                    the Oil Pollution Act, the Clean Water Act contin-
              resources. Section 2706(d)(1) states that the mea-              ues to operate with regard to oil pollution. Section
              sure of natural resource damages is:                            311(b)(3) states:
                       the cost of restoring, rehabilitating,                           The discharge of oil or hazardous
                       replacing or acquiring the equiva-                               substances M into or upon the navi-
                       lent of the damaged resource; the                                gable waters of the United States,
                       diminution in value of those natural                             adjoining shorelines or into or upon
                       .resources pending restoration; plus                             the waters of the contiguous zone, or
                       the reasonable cost of assessingthose                            (ii) in connection with activities un-
                       damages.                                                         der the Outer Continental Shelf
                                                                                        Lands Act or the Deepwater Port Act



              Ocean Resources Planning - Page 36









                              of 1974, or which may affect natural                       N.C. Coastal Area Management Act
                              resources belonging to, appertaining
                              to, or under the exclusive manage-                             Drilling related to the exploration or ex-
                              ment authority of the United States                   traction of oil or gas from North Carolina's coastal
                              (including resources under the Mag-                   ocean would constitute development as defined by
                              nuson Fishery Conservation and                        CAMA. Development includes:
                              Management Act) in such quantities
                              as may be harmful ... is prohibited                            any activity in a duly designated area
                                                                                             of environmental concern involving,
                              Title 40 ofthe Code ofFederal Regulations                      requiring or consisting of the con-
                     covers environmental protection, and Section 110                        struction or enlargement of a struc-
                     of this title governs the discharge of oil. Section                     ture; excavation; dredging; filling;
                     110.1 defines discharge as "any spilling, leaking,                      dumping; removal of clay, silt, sand,
                     pumping, pouring, emitting, emptying or dumping                         gravel or minerals; bulkheading; driv-
                          Excluded from the definition are those dis                         ing ofpilings; clearing or alteration of
                     charges allowed by the NPDES of Section 402 of                          land as an adjunct of construction;
                     the Clean Water Act. Sections 110.3, .4 and .5                          alteration or removal of sand dunes;
                     establish the guidelines for "harmful" discharges,                      alteration of the shore, bank or bot-
                     pertaining respectively to navigable waters, the                        tom of the Atlantic Ocean or any
                     contiguous zone and waters beyond the contiguous                        sound, bay, river, creek, stream, lake
                     zone. The standards are the same for all three.                         or canal. [351
                     They include those discharges of oil that:
                                                                                             Since drilling for oil or gas would be a
                      (a)     violate applicable water quality stan-                development activity in two of CAMAs areas of
                              dards or                                              environmental concern (AECs) - estuarine wa-
                      (b)     cause a film or sheen upon or discol-                 ters and public trust - a CAMA permit would be
                              oration of the surface of the water or                required. Major development permits are needed
                              adjoining shorelines or cause a sludge                for activities that require permission, licensing,
                              or emulsion to be deposited beneath                   approval, certification or authorization from any
                              the surface of the water or upon ad-                  state or federal agency; occupy a .. water area in
                              joining shorelines.                                   excess of 20 acres; contemplate drilling or excavat-
                                                                                    ing natural resources ... underwater.... [361 Based
                     Exploration, Development and                                   on this language, drilling for oil or gas would
                     Production of Oil and Gas                                      require a CAMA major development permit. The
                                                                                    permit invokes a review process that would solicit
                     in State Waters                                                comments from several other state and federal
                                                                                    agencies and would weigh the activity against
                              Chapter 113 of the N.C. General Statutes              general and specific use standards for the estua-
                     governs conservation and development ofthe state's             rine waters and public trust AECs. [37] To be
                     natural resources. Article 27, Subchapter V deals              permitted, the activity must be water-dependent
                     specifically with oil and gas conservation.                    and consistent with the applicable use standards.
                                                                                    An exception is granted when a proposed project
                              General Statute 113-378 requires anyper-              will have public benefits that clearly outweigh its
                     son, firm or corporation interested in oil and gas             long-range adverse effects, no reasonable and pru-
                     exploration to register with DEHNR, giving the                 dent alternate site is available and all reasonable
                     location ofthe proposed exploratory drilling opera-            means and measures to mitigate adverse impacts
                     tion. DEHNR can prohibit a well if it poses a haz-             have been incorporated into its design.
                     ard to the quality of the state's air, water, soil or
                     any other environmental resource. [33] If an ex-                        The general and specific use standards for
                     ploratory well is allowed, a $5,000 bond must be               estuarine waters and public trust AECs focus on
                     posted to help ensure that it is properly plugged              activities likely to occur in and along the state's
                     once drilling operations are complete. [341 Before             sounds and coastal rivers - not within the state's
                     drilling can begin, the appropriate leasing proce-             coastal ocean. The Coastal Resources Commission
                     dures for state lands must be followed.                        has adopted some standards that address the de-
                                                                                    velopment of energy resources. [381 However,
                                                                                    these standards are very general and primarily
                                                                                    focus on land-based energy facilities. As stated
                                                                                    already, a draft OCS policy was developed in 1991


                                                                                                 Ocean Resources Planning - Page 37









              for possible incorporation into the state's coastal             water quality classifications for state waters. 1431
              energy policies. In addition to laying a foundation             The commission has developed classifications and
              for consistency reviews, the draft contains a list of           standards for both fresh and tidal waters. [44] In
              factors to be considered should oil and gas explora-            line with the federal act, discharges are only al-
              tion and development be proposed for the state's                lowed if they do not violate water quality stan-
              coastal ocean [see Appendix 6 for these draft poli-             dards. A state permit process is in place to deter-
              cies, which have not been adopted as state stan-                mine the impact of a discharge. [451 It should also
              dards].                                                         be noted that Section 401 of the Clean Water Act
                                                                              requires all applicants for federal licenses or per-
              North Carolina's Environmental Policy Act                       mits to obtain a water quality certification for any
                      As reviewed in Section 3 of this report,                activity that may discharge into state waters.
              North Carolina's Environmental Policy Act re-                            However, any discharge into the Atlantic
              quires an environmental document (either an en-                 Ocean is currently prohibited by law unless per-
              vironmental assessment or impact statement) for                 mitted by Environmental Management Commis-
              actions that are publicly funded or involve public              sion regulation. [461 In 1980, the commission
              lands and might significantly affect the environ-               adopted EPA!s regulations for the discharge of
              ment. [391 Since oil and gas exploration and                    wastewaters to the Atlantic Ocean. [47] Conse-
              production activities in the state's coastal ocean              queritly, any discharge associated with an oil or gas
              would involve public lands and possibly public                  operation would have to satisfy these regulations
              funds, a state document would be required. [401                 before being permitted.
              Also, a proposal to lease state property for oil and
              gas exploration and production could evoke the                           A discharge involving oil products is also
              requirement since the leasing procedure could lead              controlled by the N.C. Oil Pollution and Hazardous
              to activities on state lands that may significantly             Substances Act of 1978 and its amendments. [481
              affect the environment. [411                                    The purpose of this act is:
                      Ifan environmental document is required,                         to promote the health, safety and wel-
              and it indicates that the project may have a major                       fare ofthe citizens ofthis state by pro-
              envirorunental impact but no appropriate alterna-                        tecting the land and the waters over
              tive is available, the governor will decide whether                      which this state hasjurisdiction from
              the project will go forward. [421                                        pollution by oil, oil products and other
                                                                                       hazardous substances ... . The Gen-
                         State Water Quality Laws                                      eral Assembly further declares that it
                                                                                       is the intent of this article to support
                      The Clean Water Act allows individual                            and complement applicable provisions
              states to set up their own water quality programs                        of the federal Water Pollution Con-
              so Jong as they are consistent with federal guide-                       trol Act (Clean Water Act), 33 U.S.C.
              lines. These guidelines require that the country's                       sec. 1251 et seq., as amended and the
              waters are classified accordingto their highest and                      National Contingency Plan for remov-
              best use and that water quality standards are                            al of oil adopted pursuant thereto.
              developed for each classification to protect desig-                      [491
              nated uses. A state must also adopt an anti-degra-                       To achieve its purpose, the act makes it
              dation policy and procedures to conserve, maintain              unlawful:
              and protect existing uses and water quality.
                      In 1974, the U.S. Enviroranental Protec-                         for any person to discharge, or cause
              tion Agency (EPA) gave North Carolina the au-                            to be discharged, oil or other hazard-
              thority to implement its own water quality man-                          ous substances into or upon any wa-
              agement program. Consequently, the state Legis-                          ter, tidal flats, beaches or lands within
              lature adopted laws that outline a water quality                         this state or into any sewer, surface
              strategy. Most of these laws can be found in Chap-.                      water drain or other waters that drain
              ter 143, Article 21, Part I of the N.C. General                          into the waters of this state, regard-
              Statutes. These laws established the Environmen-                         less of the fault of the person having
              tal Management Commission (staffed by the Divi-                          control over the oil or other hazard-
              sion of Environmental Management) and gave it                            ous substances        [501
              the authority to adopt and establish standards for


              Ocean Resources Planning - Page 38










                                In July 1989, North Carolina amended the                          Anyone discharging or leaking natural
                      Oil Pollution and Hazardous Substances Act to                      gas, oil or drilling waste into coastal fishing waters
                      include a new section dealing with offshore oil and                or offshore waters is held strictly liable for all
                      gas activities. This section, entitled "Adverse Envi-              cleanup costs and all direct and indirect damages
                      ronmental Impact Protection," declares that:                       incurred within the territorial jurisdiction of the
                                                                                         state. [52] The act covers the following sources:
                         (1)    the traditional uses of the seacoast of
                                the state are public and private recre-                   (1)     any offshore well or undersea site where
                                ation, commercial and sportfishing                                there is exploration for, or extraction
                                and habitat for natural resources;                                or recovery of, natural gas or oil;
                         (2)    the preservation of these uses is a                       (2)     any offshore facility, oil rig or oil plat-
                                matter of the highest urgency and                                 form where there is exploration for, or
                                priority, and such uses can only be                               extraction, recovery processing or stor-
                                preserved effectively by maintaining                              age of, natural gas or oil;
                                and enhancing the existing condition                      (3)     any vessel offshore on which natural'
                                of the coastal waters, estuaries, wet-                            gas, oil or drillingwaste is transported,
                                lands, tidal flats, beaches and public                            processed or stored other than for pur-
                                lands adjoining the seacoast;                                     poses of fuel for the vessel carrying it;
                         (3)    the coastal economy, including ac-                                and -
                                cess to the coast ofthe state, depends,                   (4)     any pipeline located offshore in which
                                either directly or indirectly, upon a                             natural gas, oil or drilling waste is
                                ready and continuous reserve of pe-                               transported. [531
                                troleum products and by-products,
                                including that portion of the supply                              Offshore waters include both the territo-
                                resulting from oil and gas activities                    rial sea extending seaward from the coastline to
                                on the Outer Continental Shelf;                          the state and federal boundary and U.S. jurisdic-
                         (4)    offshore oil and natural gas explora-                    tional waters adjacent to the territorial sea. [541
                                tion, production processing, recovery                    This means that the liability provision governs all
                                and transportation pose increased po-                    ocean waters out to 12 miles. State law can pre-
                                tential for damage to the state's                        sumably control activities in the federal waters so
                                coastal environment to the traditional                   long as the injury suffered is within state jurisdic-
                                uses of the area and to the beauty of                    tional waters and the state law is not inconsistent
                                the North Carolina coast;                                with federal law.
                         (5)    spills, discharges and escapes of pol-
                                lutants occurring as a result of proce-                           The definition of damages under the act is
                                dures involving offshore oil and natu-                   broad, including the costs of property restoration,
                                ral gas-related activities have oc-                      lost income, impairment of earning capacity,
                                curred in the past, and future threats                   cleanup costs and the rehabilitation of natural
                                of potentially catastrophic propor-                      resources. This broad definition and the unlimited
                                tions from such activities require                       liability provisions give the state a powerful tool for
                                adoption of this part as mitigation                      protecting its coastal and marine resources.
                                against such events;
                         (6)    the economic burdens imposed by the
                                General Assembly upon those en-                                   Enforcement ofthese provisions rests with
                                gaged in the offshore exploration, pro-                  the Environmental Management Commission. The
                                cessing, recovery and transportation                     act authorizes the attorney general to initiate
                                of oil and natural gas are reasonable                    citizen suits against violators for injunctive relief
                                and necessary in light of the tradi-                     and/or damages and allows an injured party to
                                tional uses and interests herein pro-                    bring suit for civil damages. [551
                                tected, which are expressly declared                              The act gives the governor power to pro-
                                to be of grave public interest and                       claim an emergency if a spill occurs. [561 In this
                                concern to the state in promoting its                    light, the act requires the development of an oil
                                general interest and welfare, promot-                    spill contingency plan "relating solely to the under-
                                ing the public health, preventing dis-                   sea exploration, extraction, production and trans-
                                eases and providing for the public                       port of oil or natural gas in the marine environ-
                                safety. [511                                             ment off the North Carolina coast, including any
                                                                                         such development on the Outer Continental Shelf



                                                                                                      Ocean Resources Planning - Page 39










             seaward of the state's jurisdiction over its territo-                   (ii) The state should maintain its ability to
             rial waters." [571                                             respond adequately to future OCS proposals, in-
                                                                            cluding the five-year oil and gas program, lease
                      To date, the N.C. Division of Emergency               program and lease-sale environmental impact
             Management has developed a draft oil spill contin-             statements, and exploration proposals. A change
             gency plan. [581 The purpose of the plan is to                 in administration and/or in- the world energy mar-
             minimize the risk to the public, its property and to           kets could affect oil and gas demand, which could
             the environment. The plan would coordinate a                   lead to a push for increased domestic exploration
             multiorganizational response and recovery effort               and production.
             in order to minimize the impact of oil spills on state
             waters. It attempts to integrate the state's oil spill                  (iii) The Minerals Management Service
             emergency response into the 'framework of the                  has statutory authority for implementing many of
             National Contingency Plan [see Appendix 7 for                  the safety and financial liability provisions of the
             parts of the draft plan]. Leadership under the plan            federal Oil Pollution Act. The state, which is final-
             rests with the state director of Emergency Man-                izing its own oil spill contingency plan, has a direct
             agement, who has access to all state government                interest in monitoring implementation of the Oil
             resources during an emergency as the State Emer-               Pollution Act and participating in its rule-making.
             gency Response Team leader. [591                                        Uv) North Carolina has historically sup-
                      The state Legislature established the Oil             ported OCS revenue sharing. The federal OCS
             or Other Hazardous Substances Pollution Protec-                policy committee has endorsed a recommendation
             tion Fund as part of the original Oil Pollution and            to the secretary of the Department of Interior that
             Hazardous Substances Control Act. [60] It is a                 favors revenue sharing with all states that have an
             nonlapsing, revolving fund consisting of money                 approved coastal program. North Carolina should
             appropriated by the General Assembly. It is to be              continue to support revenue sharing through par-
             used to defray the expenses of containing, collect-            ticipation on the policy committee.
             ing, dispersing or removing oil or other hazardous
             substances discharged to state land or waters or                        II. The task force should ask DEHNR to
             discharged into waters outside the territorial lim-'           review provisions of GS 113-378 to determine ifthe
             its of the state that affect land or waters or related         $5,000 bond requirement to ensure that a well is
             uses within the state.                                         properly plugged once drilling operations are com-
             Recommendations                                                plete is adequate for underwater drilling.
                                                                                     III. The task force should recommend to
                      I. The task force should ask the Division of          the Department of Administration and Council of
             Coastal Management and the Coastal Resources                   State that the state's current leasing structure be
             Commission to:                                                 reviewed and revised. The department and the
                                                                            council should address the issues of competitive
                      A. Review the draft document - "Draft                 bidding, rents and royalties, environmental re-
             OCS Policy for Incorporation into 7M.0400(Coastal              porting, compliance and enforcement. Lease con-
             Energy Policies)." This document contains valid                tracts should carry public trust and environmental
             recommendations and should be reviewed for for-                protection conditions and should be made revo-
             mal adoption [see Appendix 61.                                 cable on condition of violation.
                      B. Continue support for the state's OCS                        Additional monies collected through lease
             program (currently housed in Division of Coastal               fees or royalties should continue to be used for state
             Management) and state participation in the fed-                conservation efforts.
             eral OCS program. There are multiple reasons for
             continued support.

                      W Mobil Oil's lawsuit and federal consis-
             tency appeals are still pending. If the company
             fails to win its lawsuit seeking refund of money
             paid on leases off the Atlantic, then it may pursue
             its lease rights under the Outer Continental Shelf
             Lands Act.




             Ocean Resources Planning - Page 40









                       Footnotes                                                            [191 43 U.S.C.A. 1334(a)(2)(A)(i).
                       [11 Memorandum to Steve Levitas, N.C. Depart-                        [201 16 U.S.C.A. 1456(c)(3)(B)(iii).
                       ment of Environment, Health and Natural Re-                          [211  43 U.S.C.A. 1340(d).
                       sources, from Kim Crawford and Roger Schecter,
                       N.C. Division of Coastal Management. Status of
                       Mobil Oil's drilling proposal, pending lease sales                   [221  16 U.S.C.A. 1536(a)(2).
                       and the federal OCS program, May 25, 1993.                           [231  16 U.S.C.A. 1362(6).
                       [21 Phone conversation with Kim Crawford, N.C.                       [241  43 U.S.C.A. 1351.
                       Division of Coastal Management, March 15,1994,
                       and later memorandum from Tony Giordano, Min-                        1251  43 U.S.C.A. 1351(c).
                       erals Management Service, April 1994.
                       [31 Phone conversation with Kim Crawford, N.C.                       [261  43 U.S.C.A. 1351(a)(2).
                       Division of Coastal Management, March 15, 1994.                      [271  30 CFR 250.34@).
                       [41 43 U.S.C.A. 1331 et seq.                                         [281  43 U.S.C.A. 1351(e) and (D.
                       [51 43 U.S.C.A. 1301 et seq.                                         [291  43 U.S.C.A. 1351(d).
                       [61 GS -113-391.                                                     [301  33 U.S.C.A. 2701 et seq.
                       [71 43 U.S.C.A. 1344.                                                [311  33 U.S.C.A. 1321(d).
                       [81 Moffitt, Donna. "OCS Lease Sale Update and
                       Lease Status Summary for Offshore North Caro-                        [321  42 U.S.C.A. 9607(a).
                       lina," N.C. Office of Marine Affairs, 1984.                          [331  GS 113-391(c)(16).
                       [91 Kerttula, Elizabeth and Gabrielle LaRoche.
                       "Alaska Outer Continental ShelfOil and Gas Lease                     [341  GS 113-378.
                       Sale Review and Coastal Zone Management (Pub-                        [351  GS 113A-103(5).
                       lic Review Draft)," Alaska Department of Law and
                       Division of Governmental Coordination, 1993.                         [361  GS 113A-118(d).
                       [101 43 U.S.C.A. 1344. -                                             (371  In addition to the internal review conducted
                       [111 42 U.S.C.A. 4321 et seq.                                        by the Division of Coastal Management, other
                                                                                            state agencies that review applications are: the
                       [121 Phone conversation with Mm Crawford, N.C.                       Division of Environmental Management in DE-
                       Division of Coastal Management, March 15, 1994.                      HNR; Division of Marine Fisheries in DEHNR;
                                                                                            Division of Environmental Health (Shellfish Sani-
                       [131 43 U.S.C.A. 1345.                                               tation Branch) in DEHNR; Division of Land Re-
                                                                                            sources in DEHNR; Division ofWater Resources in
                       [141 Moffitt, Donna. "OCS Lease Sales Update and                     DEHNR; Division of Archives and History in the
                       Lease Status Summary for Offshore North Caro-                        Department of Cultural Resources; Division of
                       lina," N.C. Office of Marine Affairs, 1984.                          Community Assistance in the Department of Com-
                                                                                            merce; State Property Office in the Department of
                       [151 Phone conversation with Daniel F. McLawhorn,                    Administration; and the Department of Transpor-
                       N.C. Department of Justice, April 4, 1994.                           tation. Reviewing federal agencies include: the
                                                                                            U.S. Army Corps of Engineers, Environmental
                       [161 Id.                                                             Protection Agency, U.S. Fish and Wildlife Service
                                                                                            and National Marine Fisheries Service.
                       [171 43 U.S.C.A. 1337(b)(4).                                         [381 15A NCAC 7M .0400.
                       [181 43 U.S.C.A. 1340(c)(1).
                                                                                            [391 GS 113A-1-10.



                                                                                                          Ocean Resources Planning - Page 41










               [401 Phone conversation with Daniel F. McLawhorn,
               N.C. Department of Justice, April 4, 1994.

               [411 Comment by Beth McGee, N.C. Division of
               Environmental Management.

               [421 GS 113A-5.


               [431 GS 143-214.1.


               [441 15A NCAC 2B .0211-.0212.


               [451 GS 143-215.1.

               [461 GS 143-214.2.

               [471 15ANCAC 2H.0400(d). Federal regulation of
               ocean outfalls is found in Section 403 of the Clean
               Water Act, 33 U.S.C.A. 1343; EPA!s ocean dis-
               charge criteria can be found at 40 CFR 125.120-
               125.124.


               [481 GS 143-215.75.

               [491 GS 143-215.76.

               [501 GS 143-215.83(a).


               [511 GS 143-215.94AA.


               1521 GS 143-215.94CC(a).


               [531 Id.


               [541 GS 143-215.94BB(7).

               [551 GS 143-215.94FF(a)-(b).

               [561 GS 143-215.9411.


               [571 GS 143-215.94HH.

               [58] N.C. Emergency Operations Plan, Part III,
               Annex N, Oil Spill Contingency Plan, N.C. Division
               of Emergency Management, March 1992.

               [591 Id.


               [601 GS 143-215.87.












               Ocean Resources Planning - Page 42












                                                                                             The N.C. Marine Fisheries Commission
                                                                                    regulates the conservation of marine fishery re-
                                                                                    sources in the Atlantic Ocean out to three miles,
                                      IR
                                                                                    the end ofthe state'sjurisdiction. The commission's
                                                                                    jurisdiction also includes coastal sounds and es-
                                                                                    tuarine waters inland to a dividing line agreed to
                                                                                    with the state's Wildlife Resources Commission.
                                                                                    Staffsupport for the Marine Fisheries Commission
                                                                                    is provided by the Division of Marine Fisheries,
                                                                                    which is located in the Department of Environ-
                                                                                    ment, Health and Natural Resources (DEHNR).

                                                                                             The Atlantic States Marine Fisheries Com-
                                                                                    mission develops and enforces coastal fishery man-
                                                                                    agement plans on an intezjurisdictional basis
                                                                                    among the states. The plans and associated regu-
                                                                                    lations are applicable within state jurisdictional
                                                                                    waters (out to three miles).

                                                                                             The South Atlantic Fishery Management
                                                                                    Council, created by the federal Magnuson Fishery
                                                                                    Conservation and Management Act, manages fish
                                                                                    stocks in the ocean from three to 200 miles off
                                                                                    North Carolina's coast. This council also develops
                                                                                    and enforces management plans for specific fisher-
                                                                                    ies.

                                                                                    Introduction,

                                                                                             North Carolina has within its jurisdiction
                                                                                    about 2.2 million acres of estuarine waters and a
                                                                                    half million acres of ocean waters. These waters
                                                                                    have a long history of providing fish and shellfish
                                                                                    in an abundance that seemed inexhaustible at one
                                                                                    time. In a book published almost 100 years ago,
                                                                                    North Carolina's shellfish beds were described as
                                                                                    "ample for all time" and as "one treasure-house not
                                                                                    yet plundered; one great water granary whose
                                                                                    doors are not yet thrown open." [11 However, that
                                                                                    same book contained a warning for those who fail
                                                                                    to exercise moderation. In lamenting the demise of
                                                                                    the shellfish industry in other states, the book
                                                                                    reads:


                                                                                             The consequence [ofoverexploitation]
                                                                                             is the depletion ofmany grounds once
                                                                                             regarded as inexhaustible, the dimi-
                                                                                             nution in other waters where dimi-
                                                                                             nution seemed impossible, followed
                                                                                             by the assertion of local rights, at-
                                                                                             tempts at the exclusion of invading
                                                                                             trespassers, contention, bloodshed;
                                                                                             finally legislative action and the ef-
                                                                                             fort to define rights by law, with power
                                                                                             to assert and secure them by force;
                                                             OR





















































                                                                                             and all this made necessary because
                                                                                             human nature knows no moderation
                                                                                             in the use of the free gifts of Provi-

                                                                                                 Ocean Resources Planning - Page 43










                       dence, or in the attainment of that                             As oceanfront communities become increas-
                       which leads to competency and wealth.                  ingly crowded, local governments will grapple with
                                                                              more conflict between users of the shoreline and
                       The attempt to retrace the steps ofpast                users of the ocean waters beyond their shoreline.
                       waste and neglect is what invariably                   These conflicts are pressing local governments to
                       follows in locking the stable door after               ascertain their role in managing some fisheries-
                       the horse has gone - vain regrets and                  related activities. Questions will arise. For ex-
                       fruitless self-reproach. All the deep re-              ample, is it appropriate for local government to
                       search of science, all the labor of plant-             regulate fishing activities on the public beach within
                       ing new territory of waters, will not                  a local jurisdiction? Answers will depend on know-
                       bring back to Connecticut, New York,                   ing what types of action constitute an "incidental
                       Maryland and Virginia the store they                   effect" on estuarine and marine resources and
                       wasted and the abundance they so uni-                  knowing how to craft local ordinances that do not
                       versally squandered.                                   conflict with existing state and federal law. This is
                                                                              a difficult task and can lead to contention among
                       Although the author was referring to an                local government, the Marine Fisheries Commis-
              estuarine rather than an ocean resource, there is               sion, DEHNR and advocacy groups representing
              wisdom in these early observations. North Caro-                 various users.
              lina, like the states described here, is now experi-
              encing the consequences of overexploitation of its              The Marine Fisheries Commission
              fishery resources. Overharvesting by commercial                 and Division of Marine Fistigries
              and recreational fishers, coupled with disease and
              pollution, has produced a fishery that is in trouble.                    The Marine Fisheries Commission regu-
              Jurisdiction - Local and State                                  lates the conservation ofmarine fisheries resources
                                                                              within the state jurisdiction of the -Atlantic Ocean
                       By the early 1960s, the N.C. General As-               (out to three miles). [61 Its jurisdiction also in-
              sembly realized a need for state action. In 1965, the           cludes the coastal sounds and estuarine waters
              Legislature enacted a statutory package recogniz-               inland to a dividing line agreed to with the Wildlife
              ing that "the enjoyment of the marine and estua-                Resources Commission. [7] The Wildlife Resources
                                                                              Commission has jurisdiction over waters inland of
              rine resources of the state belongs to the people of            the dividing line. Coastal waters that host a signifi-
              the state as a whole and is not properly the subject            cant number of freshwater fish may be designated
              oflocal regulation." [21 This package abolished "all            as "joint fishing waters." [81 In these waters, the
              special, local and private acts and ordinances regu-            Marine Fisheries Commission and the Wildlife
              lating the conservation of marine and estuarine                 Resources Commission may jointly make regula-
              resources" and vested the state (DEHNR and the                  tions. The Marine Fisheries Commission is a citi-
              Marine Fisheries Commission) with the power to                  zen commission staffed by the Division of Marine
              administer "governing statutes and adopting rules               Fisheries in DEIINR. The attorney general acts as
              in a manner to reconcile as equitably as may be the             attorney for the commission and, through separate
              various competing interests of the people as re-                legal counsel, advises the Division of Marine Fish-
              gards these resources ... . " [31 In carrying out these         eries.
              duties, DEHNR and the Marine Fisheries Com-
              mission are charged with "considering the inter-                         The Marine Fisheries Commission has a
              ests of those whose livelihood depends,upon full                broad range ofpowers within the geographic bound-
              and wise use of renewable and nonrenewable re-                  aries of its jurisdiction. It can authorize, license,
              sources and also the interests of the many whose                regulate, prohibit, prescribe or restrict:
              approach is recreational ... ." [4] Although it
              appears that the General Assembly gave the *state                 (1)    the time, place, character or dimen-
              the exclusive right to regulate and control marine                       sions of any methods or equipment
              and estuarine resources, there is statutory lan-                         that may be employed in taking fish.
              guage that creates confusion about local                                 This includes the power to open and
              government's role in some aspects of fisheries                           close coastal fishing waters com-
              management. The language states that a local                             pletely or only to the taking of par-
              ordinance may be valid if it is limited to an "inci-                     ticular fish;
              dental effect" on estuarine or marine resources and               (2)    the seasons for taking fish;
              does not conflict with any state law that is "essen-              (3)    the size limits of fish and ma.-@dmum
              tial" to the conservation of these resources. [51                        quantities of fish that may be taken,

              Ocean Resources Planning - Page 44









                              possessed, bailed to another, trans-                           agreements made with other state
                              ported, bought, sold or given away;                            jurisdictions through the Atlantic
                              and                                                            States Marine Fisheries Compact; and
                       (4)    the possession, importation and ex-                    (4)     adopt, by reference, relevant provi-
                              portation offish, includingyoung "ed-                          sions of federal laws and regulations
                              ible" fish and seafood. [91                                    where there is concurrent state and
                                                                                             federal jurisdiction. [151
                              In the context of this language, fish in-
                     cludes shellfish and other living marine and estua-                     Because conditions in the marine and es-
                     rine resources.                                                tuarine environment are variable and may require
                                                                                    expedient action, the Marine Fisheries Commis-
                              The Marine Fisheries Commission can also:             sion is allowed by law to delegate "proclamation
                                                                                    authority" to the director of the Division of Marine
                       (1)    adopt rules and take all steps neces-                 Fisheries to suspend or implement commission
                              sary to develop and improve aqua-                     rules. [161 More specifically, this includes the
                              culture, including the cultivation,                   broad authority to open and close seasons and
                              harvesting and marketing of shell-                    areas, govern various activities, and reduce or
                              fish and other marine resources. The                  increase the size or harvest limits. [17] For ex-
                              commission has the authority to                       ample, it is not uncommon for certain estuarine
                              adopt rules regarding the leasing of                  waters to register high fecal coliform counts after
                              public lands and waters for aquacul-                  heavy rains. These conditions are likely to prompt
                              ture purposes; and [101                               a recommendation from the Division of Health
                       (2)    establish rules for the use of private                Services (Shellfish Sanitation Branch) to the Divi-
                              fisheries when such private claims                    sion of Marine Fisheries director that these areas
                              have been recognized under GS 113-                    be closed to shellfishing for health reasons. From a
                              205. GS 113-205 required that all                     more oceanic perspective, red tides brought north
                              claims to public lands under the navi-                on the Gulf Stream can also require closure of
                              gable waters of any coastal county or                 marine waters. Because the public's health may be
                              any right of fishery in those waters                  at risk, rapid response is needed in these situa-
                              be registered on or before Jan. 1,                    tions. In addition to public health concerns, the
                              1970. The commission, acting                          Marine Fisheries Commission has given the direc-
                              through the attorney general, can                     tor proclamation authority to address socioeco-
                              institute an action in court to contest               nomic conflicts. Because of its breadth, this au-
                              a private claim of title or claimed                   thority has been controversial. There appears to be
                              right of fishery in any navigable wa-                 a trend by the commission to place some restric-
                              ter of North Carolina. [111                           tions on the authority, such as "sunset" and review
                                                                                    provisions. The Marine Fisheries Commission also
                              Finally, the Marine Fisheries Commis-                 reserves the right to override the director's procla-
                     sion can develop cooperative and reciprocal agree-             mations.
                     ments with other departments andjurisdictions. It
                     can, acting in cooperation with DEHNR:                                  Like other state commissions, the Marine
                                                                                    Fisheries Commission is composed of citizens rep-
                       (1)    enter into cooperative agreements                     resenting a variety of interests. The appointments
                              with other public and private agen-                   are made by the governor. Of the 17 members, four
                              cies (including other state commis-                   must represent commercial fishing interests (three
                              sions that play a role in managing                    ofthese must be "actively connected with and have
                              marine and estuarine resources); [121                 experience in" commercial fishing, earning at least
                       (2)    comment on and otherwise partici-                     50 percent of their income by selling food from
                              pate in the determination of permit                   coastal waters, and one must be "actively con-
                              applications received by other state                  nected with and have experience in" seafood pro-
                              agencies that may have an effect on                   cessing, again earning at least 50 percent of his or
                              the marine and estuarine resources                    her income from seafood processing and distribu-
                              of the state, [131 such as CAMA                       tion). The governor must also appoint four commis-
                              major development permits;                            sioners who are actively connected with sportfishing
                       (3)    make reciprocal agreements with                       to represent recreational interests. In 1993, the
                              other jurisdictions regarding the                     General Assembly created three slots on the com-
                              management of estuarine resources.                    mission for shellfishing representatives. These
                              [141 This includes, for instance,                     positions were added to help the commission focus


                                                                                                 Ocean Resources Planning - Page 45










             on concerns about the decline in North Carolina's             the Wildlife Resources Commission. Some argue
             shellfish production. The remaining positions are             that a saltwater license should be required because
             divided as follows: three at-large appointees and             saltwater anglers use a common property resource.
             three appointees with training and expertise in               That argument is usually conditioned on assur-
             marine or estuarine sciences or the environment               ances that fees collected would be used to enhance
             affecting marine and estuarine resources. [181                fishery resources. Also, a saltwater license could
                                                                           provide valuable fishery statistics, such as the size
             State Fisheries Management                                    of the user population.
                      The statutes outlining the powers and                         II. Shellfish and crab license
             duties ofthe Marine Fisheries Commission present
             two regulatory options to facilitate its broad stew-                   North Carolina requires a license to take
             ardship responsibility for state marine and estua-            shellfish or crabs from public or private grounds by
             rine resources - a licensing and/or permit strat-             mechanical means or for commercial use by any
             egy and the development and enforcement of use                means. [251 Licenses are issued on a fiscal-year
             restrictions. The licensing and permitting require-           basis. They may not, however, be required for
             ments most applicable to ocean activities are dis-            individuals taking less than: (1) 1 bushel of oysters
             cussed below. Those solely applicable to activities           per day, not to exceed 2 bushels per vessel per day;
             in internal waters are not discussed in this report.          (2) one-half bushel of scallops per person per day,
                                                                           not to exceed 1 bushel per vessel; (3) 100 clams per
                           Licenses and Permits                            person per day, not to exceed 200 per vessel per
                                                                           day; (4) 50 crabs per person per day, not to exceed
                      1. Commercial fishiniz-vessel license                100 per vessel per day; (5) 10 conchs or whelks per
                                                                           person per day, not to exceed 20 per vessel per day;
                      Licenses are required for all vessels fish-          and (6) 100 mussels per person per day, not to
             ing commercially in coastal waters. This includes             exceed 200 per vessel per day. [261
             all North Carolina vessels that fish commercially                      Shellfish (clams) are harvested from the
             outside ofstate waters but land and sell fish within          Atlantic Ocean, although not in the quantity taken
             the state. [19] Nonresident vessels must also be              'from North Carolina's coastal sounds and rivers.
             licensed if they fish commercially within state               The commission recently voted to remove daily
             waters or they land and sell fish in North Carolina           limits on hard clams to encourage an ocean clam
             (regardless of where the fish were caught). Reci-             fishery. However, before harvesting clams, a me-
             procity for nonresident vessels is allowed when               chanical harvest permit is required. [271
             fishers hold a valid license from their state of
             residence, and their state allows North Carolina                       III. Licenses for fish dealers/endorsements
             vessels to land and sell their catch. [201 Licenses           to sell
             are issued on a fiscal-year basis in the name of the
             owner of the vessel. It should be noted that the                       Fish handlers have been called on since
             General Assembly recently (summer 1994) passed                1984 to meet two sets of requirements before their
             a moratorium on new commercial licenses. The                  products can pass legally from the ocean to the
             desire for a moratorium is partly due to the grow-            table. First, the fisher who takes or lands any fish
             ing number of license requests from out-of-staters.           species from coastal waters must have a valid
                      In addition to a license, commercial fish-           endorsement from the Division of Marine Fisher-
             ing vessels must also have an identification num-             ies to lawfully sell it, offer it for sale or exchange it.
             ber. This requirement applies to every vessel oper-           [28] This includes fish taken from aquaculture
             ating on state waters. [211 The definition of a ves-          operations. Second, the individual or company that
             sel is very broad, including every description of a           sells the fish to the public must be a licensed fish
             watercraft or structure capable of being used for             dealer. [291 It is unlawful for fish dealers to buy
             transportation or habitation on the water. [221               fish unless the seller presents a current and valid
                                                                           vessel license with an endorsement to sell. Obvi-
                      North Carolina does not require a saltwa-            ously, there are situations where the fisher is also
             ter recreational fishing license, although the Ma-            the dealer. In these cases, both a valid endorse-
             rine Fisheries Commission is discussing the issue.            ment and a dealer license are required.
             [231 The state does require a license for hook-and-                    Recreational anglers can sell their catch if
             line fishing in inland (fresh) waters and in joint            they hold a valid endorsement to sell. Also, fish
             waters. [24] Hook-and-line licenses are issued by             caught at tournaments can be sold so long as the

             Ocean Resources Planning - Page 46









                     tournament is officially sanctioned by Division of                             Use Restrictions
                     Marine Fisheries and its representatives hold an
                     endorsement to sell. These fish are donated to the                      Use restrictions are another regulatory
                     tournament and sold collectively.                              option available to the Marine Fisheries Commis-
                                                                                    sion. Most can be grouped into two general but
                              There has been some confusion about the               interrelated categories: (1) the permanent or tem-
                     endorsement to sell requirement. Since the en-                 porary closure of certain marine and estuarine
                     dorsement applies to each commercial vessel, fish-             waters to specific fishery activities for geographic,
                     ers with more than one vessel must get multiple                resource or environmental reasons and (2) fishing
                     endorsements - a requirement seen by some as                   gear restrictions.
                     burdensome.                                                             I. Areas permanently or temporarflysiosed
                              IV, Ocean fishing pier license                        to specific fishery activities

                              Every manager of an ocean fishing pier                         A. Prim= and secondary nursea areas
                     who charges the public a fee to fish must secure a
                     pier license from the Marine Fisheries Commis-                          The Marine Fisheries Commission has de-
                     sion. This license authorizes the pier manager and             veloped regulations to establish and protect nurs-
                     employees to act as fish dealers without having to             ery areas that support juvenile populations of
                     secure the dealer license. [301                                economically important seafood species. Many of
                                                                                    these species are caught in North Carolina's coastal
                              V. Spotter plane license                              ocean.

                              A spotter plane is an aircraft used to locate                  Primary nurseries have characteristics
                     schools of fish from the air. Once located, the plane          (food, cover, bottom type, salinity, temperature)
                     directs vessels to the fish. In North Carolina, the            that enhance the initial postlarval development of
                     menhaden industry uses spotter planes. A license               young finfish and crustaceans. [361 Consequently,
                     is required for planes used in a commercial fishing            these areas must be protected so juvenile organ-
                     operation. [311                                                isms can develop normally. Without protection,
                                                                                    the state's fishery and the livelihood and recre-
                              It is illegal to use spotter planes to search         ational enjoyment ofits fishers would suffer. These
                     for food fish except in connection with a purse seine          nurseries are generally located in the uppermost
                     operation authorized by the Marine Fisheries Com-              reaches of the estuaries. The Division of Marine
                     mission. [321 And in North Carolina, it is unlawful            Fisheries attempts to mark them by posting signs
                     to use purse seines except to take menhaden or                 downstream of their boundaries. Primary nursery
                     Atlantic thread herring. [331                                  boundaries are also described in the fishery regu-
                                                                                    lations. [371 It is unlawful to use any trawl net,
                              VL Scientific collecting-permit                       long haul seine, swipe net or dredge to harvest
                                                                                    marine fish in a primary nursery area. It is also
                              A scientific collecting permit is required to         unlawful to use any mechanical methods for clam
                     take for scientific purposes any marine or estua-              or oyster harvest in these areas. [381
                     rine species that is out of season or otherwise
                     protected. [341                                                         Later juvenile development occurs in sec-
                                                                                    ondary nurseries. Fish populations in these areas
                              VIL Pound net permit                                  are usually composed of developing subadults of
                                                                                    similar size that have migrated from an upstream
                              It is unlawful to set pound nets without              primary nursery. [391 As a general rule, it is un-
                     first obtaining a pound net permit. The permit is              lawful to use trawl nets in any of the permanent
                     required to reduce user conflicts and to protect               secondary nursery areas. [40] However, the Divi-
                     traditional uses. [15 NCAC 3J.01071                            sion of Marine Fisheries director can open by
                                                                                    proclamation certain secondary nursery areas to
                              VIII. 5pecial permit for-spegific manage-             trawling during specified times of year. [411
                     ment purRoses
                                                                                             Even though primary and secondary nurs-
                              The fisheries director may require by proc-           ery areas are located in the estuaries and not the
                     lamation that any licensee obtain a special permit             ocean, they are crucial for the continued health of
                     and keep records and accounts that may be reason-              most commercially important oceanic fish species.
                     ably required to participate in a fishery. [351


                                                                                                  Ocean Resources Planning - Page 47










                      B. Militaa restricted areas                          ity is the growing number of conflicts between
                                                                           commercial fishers who set offshore nets (stop
                      The U.S. Army Corps of Engineers has                 nets) and ocean pier owners. As a result of the new
             restricted access to certain areas of coastal and             proclamation authority, there can be instances
             marine waters. [42] These areas are used for                  where nets must be set farther than 750 feet from
             military training, which may include bombing,                 an ocean pier. [511
             and consequently pose serious risk to people who
             attempt to use them. The restricted areas are                          F. Artificial reefs and research
             shown on navigational charts and are generally                sanctuaries
             described in the state's fisheries regulations. [43]
                                                                                    The fisheries director may prohibit or re-
                      One designated restricted area in the At-            strict by proclamation the taking of fish and the
             lantic Ocean is in the vicinity of Bear Inlet. [441           use of any equipment in and around an artificial
             The military should be consulted on its plans to              reef or research sanctuary. In the Atlantic Ocean,
             change these areas.                                           the area closed around artificial reefs must not
                                                                           exceed 500 yards. [521 Before closing an area, the
                      C. Sea turtle sanctuaa                               economic effect of the closure on fishing interests
                                                                           must be considered and documented.
                      The Marine Fisheries      Commission has
             identified a sea turtle sanctuary in the Atlantic                      G. Areas closed to certain types of fishing
             Ocean adjacent to Onslow County near Bear Is-                 techniques - particularly 12urse seines and trawl
             land. [451 It is unlawful at designated times to use          nets
             any commercial fishing equipment in this area.
             The fisheries director can protect turtles by modi-                    Purse seines can only be used in North
             fying by proclamation the area and times for com-             Carolina to take menhaden or Atlantic thread
             mercial fishing. [461                                         herring. [53] In connection with the menhaden
                                                                           industry, their use is also unlawful in certain ocean
                      D. Crab                kctuaries                     areas designated by the Marine Fisheries Commis-
                                                                           sion. [541 Beach communities and recreational
                      The Marine Fisheries Commission has                  fishing interests have increasingly pressured the
             identified several crab spawning areas with an                commission to add new prohibited areas next to
             oceanside boundary along the high water line near             developed shorelines. To date, most ofthe pressure
             Oregon Inlet, Hatteras Inlet, Ocracoke Inlet, Drum            has come from Dare County beach communities
             Inlet and Bardens Inlet. [471 It is unlawful to use           that claim a negative impact on tourism. The
             trawl nets or take crabs with commercial fishing              commission voted in August 1993 to prohibit men-
             gear in these areas during designated times. The              haden fishing within 1 1/2 miles of the Atlantic
             fisheries director can further restrict by proclama-          shoreline during the summer months (May to Sep-
             tion activities in these areas. [481                          tember) and within one-half mile of shoreline dur-
                                                                           ing the fall (October to December). [55] In doing so,
                      E. Areas adiacent to ocean fishinz Rim               the commission recognized that it must reach a
                                                                           compromise between two conflicting groups - a
                      It is unlawful to fish in the Atlantic Ocean         compromise that failed to completely satisfy either.
             from vessels or with a net within 750 feet of an              party.
             ocean pier if. (1) the pier is licensed; (2) buoys or
             beach markers clearly indicate the requisite dis-                      As with purse seines, the use of trawl nets
             tance to fishermen in vessels and on the beach; and           is also restricted by the Marine Fisheries Commis-
             (3) the public is allowed to fish from the pier for a         sion. [56] And again, there is mounting pressure to
             reasonable fee. [491 This prohibition does not                further restrict the trawl fishery. It is likely that
             apply to littoral owners of property within 750 feet          the commission will soon decide on additional
             of a licensed pier.                                           prohibited areas and/or gear restrictions.

                      In 1993, the Marine Fisheries Commis-                         II. Gear restrictions
             sion gave the fisheries director proclamation au-
             thority to close areas to the use of specific commer-                  The Marine Fisheries Commission has de-
             cial fishing gear. Those areas extend one-half mile           veloped  regulations that control and/or prohibit
             into the Atlantic Ocean from the beach and up to              the use of certain types of fishing gear in coastal
             one-half mile in all directions of fishing piers open         and marine waters. Commission action has been
             to the public. [50] One reason for this new author-           prompted by a concern for threatened and endan-

             Ocean Resources Planning - Page 48









                     gered species and by a decline in important recre-               [61] The Marine Fisheries Commission has also
                     ational and commercial fisheries stocks. [571 Trawl              given the fisheries director proclamation author-
                     fishing - particularly shrimp trawling - is cur-                 ity, with the prior consent of the commission, to
                     rently the most controversial gear issue. Crab                   require BRDs on trawls to reduce the finfish catch.
                     trawling is also controversial, but much smaller in              [621 BRDs are now required, and the fishing com-
                     scale.                                                           munity will likely see mandatory BRD designs in
                                                                                      the future. In addition, the commission has limited
                               A. Shrimp trawl fishin                                 takings of unmarketable finfish (sometimes re-
                                                                                      ferred to as scrap fish) caught in conjunction with
                               The shrimp industry is important in North              other fishing operations. [631 And recently (Janu-
                     Carolina. In 1992, the 5.5 million pounds har-                   ary 1994), the commission voted to prohibit all
                     vested were worth about $11 million. [581 Shrimp                 inside trawling from one hour after sunset on
                     are harvested almost exclusively by otter trawls -               Friday to one hour before sunset on Sunday - an
                     a highly unselective type of fishing gear. In the                action that added a day to the former prohibition
                     process of trawling, shrimpers catch a variety of                on inside weekend trawling. [641 These actions
                     other incidental species called bycatch. Bycatch of              exemplify the commission's trend toward address-
                     the southeastern shrimp fishery includes several                 ing the bycatch issue. How far down the regulatory
                     species of juvenile and adult finfish, crustaceans               road it travels may depend on the results of ongo-
                     such as blue and calico crabs, and other inverte-                ing bycatch studies. However, as with the purse
                     brates such as jellyfish. [591                                   seine issue, the regulatory response could depend
                                                                                      on the strength of political winds from the gather-
                               Although bycatch has been recognized as                ing storm over allocating finite resources among a
                     an issue since the 1940s, it has been most recently              growing number of users.
                     highlighted with the realization that sea turtles
                     were being trapped and killed in trawl nets. Be-                          The National Marine Fisheries Service
                     cause sea turtles are endangered or threatened                   will provide Congress with a bycatch reduction
                     under the federal Endangered Species Act [see                    plan for the southeastern shrimp fishery by April
                     Section 3 of this report] and can be caught and                  1994. Also, the Gulf and South Atlantic Fisheries
                     harmed by traditional shrimp trawling practices,                 Development Foundation and the National Ma-
                     the federal government now requires that shrimp                  rine Fisheries Service are conductingbycatch char-
                     trawls be equipped with turtle excluder devices                  acterization studies to assess the need for seasonal
                     (TEDs).                                                          and geographic closures. The N.C. Sea Grant Col-
                                                                                      lege Program and Division of Marine Fisheries
                               With the TED controversy slowly fading                 have focused on developing BRD designs. As many
                     into the background, a new bycatch issue is coming               as 60 different designs are being explored by re-
                     to the forefront in North Carolina. There is grow-               searchers and the commercial fishing industry.
                     ing concern about finfish mortality from shrimp                  [651 These research endeavors are expected to
                     trawling - particularly in internal estuarine wa-                provide fishery managers with some direction in
                     ters. As might be expected, the severity of the issue            addressing the bycatch issue.
                     is debatable; recreational fishing interests and
                     some scientists claim a devastating impact, while                         B. Othpr net/L-ear restrictions
                     commercial fishing interests and other scientists
                     claim a much less severe impact. Currently, both                          The Marine Fisheries Commission has
                     the Division of Marine Fisheries and the South                   developed a set of regulations for other types of
                     Atlantic Fishery Management Council are attempt-                 fishing gear. [661 Although too numerous and
                     ing to assess the true impact of bycatch and are                 specific to mention here, these regulations exhibit
                     studying potential solutions. [601 Solutions could               some constant themes - themes that are prima-
                     range from requiring bycatch reduction devices                   rily designed to minimize conflict among users.
                     (BRDs) in trawl nets to barring trawls from addi-                The regulations contain numerous provisions to
                     tional estuarine and/or marine areas.                            protect navigation (by keeping nets out of naviga-
                                                                                      tion channels) and the rights of other gear users (by
                               The Marine Fisheries Commission has                    requiring distances between users). The regula-
                     already taken some actions to regulate trawling.                 tions also require that gear be attended during
                     For example, in addition to opening the shrimping                legal deployment seasons and removed at seasons'
                     season, the fisheries director can, by proclamation,             end. [671
                     close coastal waters to trawling if sampling indi-
                     cates (primarily) undersized shrimp orjuveniles of                        In 1993, the Marine Fisheries Commis-
                     any other species of major economic importance.                  sion gave the fisheries director broad proclamation


                                                                                                    Ocean Resources Planning - Page 49










              authority to close areas to the use of specified                          The new act finds that "no single govern-
              fishing gear out to one-half mile in the Atlantic                mental entity has exclusive management author-
              Ocean. This action gives the director the power to               ity for Atlantic coastal fishery resources (and that)
              act promptly in addressing the growing number of                 harvesting of such resources is frequently subject
              user conflicts in the nearshore ocean waters. [681               to disparate, inconsistent and intermittent state
              The commission put some limitations on the breadth               and federal regulation that. has been detrimental
              of this authority. The fisheries director is required            to the conservation and sustainable use of such
              to hold public meetings in affected areas before                 resources ... ." The act further finds that "the
              issuing proclamations. The regulation also con-                  failure by one or more Atlantic states to fully
              tains a "sunset" provision causing the rule to ex-               implement a coastal fishery management plan can
              pire on July 1, 1995. This gives the commission an               affect the status of Atlantic coastal fisheries ... ."
              opportunity to review the success or failure of the              Based on these fmdings, the act states as its pur-
              authority at the end of two years.                               pose "to support and encourage the development,
                                                                               implementation and enforcement of effective in-
                       In.concluding the discussion on state man-              terstate conservation and management ofAtlantic
              agement, it must be remembered that North                        coastal fishery resources." More specifically, the
              Carolina's fishery laws and regulations come un-                 act requires the commission to prepare and adopt
              der the umbrella of its coastal management pro-                  coastal fishery management plans, outlining the
              gram. They are enforceable state policies that can               requirements for state compliance. Upon adoption
              be used in consistency determinations to influence               of each plan, the commission must identify the
              permitting and licensing decisions in federal wa-                states required to implement and enforce it. Put
              ters.                                                            simply, North Carolina and other member states
                                                                               will be required to implement and enforce the
              Inter.jurisdictional State                                       commission's regulations or face substantial en-
              Fisheries Management                                             forcement action. Enforcement action includes a
                                                                               fishing moratorium on the fishery in question
                       The Atlantic States Marine Fisheries Com-               within the waters of the noncomplying state.
              mission (ASMFC) was created in 1942 to coordi-                            Beyond this provision, the new act at-
              nate the actions by Atlantic Coast states to protect             tempts to clarify the roles of the ASMFC and the
              and preserve fisheries stocks under their indi-                  councils operating under the Magnuson Fishery
              vidual jurisdictions. [691 ' North Carolina joined               Conservation and Management Act. The act re-
              the commission in 1949. [701 The 14 other mem-                   quires the commission to consult with appropriate
              bers are Maine, New Hampshire, Massachusetts,                    councils to determine areas where its coastal fish-
              Rhode Island, Connecticut, New York, New Jer-                    ery management plans might complement council
              sey, Pennsylvania, Delaware, Maryland, Virginia,                 fishery management plans. (Note: don't confuse
              South Carolina, Georgia and Florida. Each state's                the commission's interstate coastal fishery man-
              delegation to the commission includes the execu-                 agement plans with the council's fishery manage-
              tive director of its marine fisheries agency, a law-             ment plans for federal waters.)
              maker and a governor's appointee. The original
              commission compact was amended in 1950 to allow                           The new act has already generated some
              groups of states to designate ASMFC as a joint                   concern in North Carolina. The commission has
              regul atory agency for specific shared fisheries. [7 11          developed a coastal fishery management plan for
                       Until recently, the commission's powers                 weakfish that calls for a reduction in trawl bycatch.
              were purely recommendatory, except in the case of                Some believe that the weakfish plan could cause
              the Atlantic striped bass. [72] It was charged to: (1)           southern commercial fishers to suffer at the hands
              develop and administer coastal fishery manage-                   of northern recreational fishers.
              ment plans (for individual species), (2) recommend                        The ASMFC has identified the following
              coastwide management measures to member states,                  fishery conservation issues as serious challenges
              (3) be a fact-finding and deliberative body and (4)              to the future management of Atlantic interstate
              establish the commission's position on national                  fisheries: (1) habitat protection, (2) fishing access,
              legislation affecting member states. [731 In 1993,               (3) fishery conflicts, particularly between recre-
              Congress passed the Atlantic Coastal Fisheries                   ational and commercial fishers, (4) bycatch and (5)
              Cooperative Management Act, which gave the com-                  overfishing. [751
              mission substantial powers. [741




              Ocean Resources Planning - Page 50








                     Federal Fisheries Management                                            The Magnuson Act created eight regional
                                                                                    councils to manage domestic and foreign fishing
                              The Magnuson Fishery Conservation and                 within the Exclusive Economic Zone. [771 Council
                     Management Act (Magnuson Act) of 1976 was                      membership includes the regional director of the
                     passed to manage coastal and ocean fisheries in                National Marine Fisheries Service, state fishery
                     waters beyond state jurisdiction. [761 Its impetus             management officers and appointees recommended
                     was the United States' desire to restrict fishing              by state governors and approved by the secretary
                     efforts by foreign vessels within 200 miles of its             of the Department of Commerce. The appointed
                     shoreline. Congress felt that "massive foreign fish-           council members, who constitute more than half of
                     ing fleets ... have contributed," by means of over-            the membership, must be knowledgeable about
                     fishing, to the badly damaged economics of coastal             fishery conservation and management, commer-
                     areas within the United States. Congress also                  cial or recreational fishing, or the fisheries re-
                     believed that the nation's fisheries were in dire              sources of the region. These councils prepare fish-
                     straits due to overfishing; so dire that the nation            ery management plans and recommend regula-
                     could not realistically wait for an international              tions for each fishery. Fishery management plans
                     fisheries agreement to address the problem.                    are developed based on the following seven stan-
                                                                                    dards set out in the Magnuson Act:
                              Notwithstanding the nationalistic under-                (1)    conservation and management mea-
                     tones that helped precipitate the act, it has evolved
                     into a conservation measure, limiting annual yields                     sures shall prevent overfishing while
                     (fisheries catch) to levels for sustaining the repro-                   achieving, on a continuing basis, the
                     ductive capacity of selected fisheries. The embodi-                     optimum yield from each fishery for
                     ment of this conservation strategy is the theory of                     the U.S. fishing industry;
                     optimum sustainable yield. Traditionally, the fish-              (2)    conservation and management mea-
                     eries have been managed using the concept of                            sures shall be based on the best scien-
                     maximum sustainable yield - the maximum take                            tific information available;
                     to ensure that enough of each species was left to                (3)    to the extent practicable, an individual
                     replenish the stock. The current optimum sustain-                       stock of fish shall be managed as a
                     able yield practice uses maximum sustainable yield                      unit throughout its range, and inter-
                     as a starting point, yet proffers flexibility into the                  related stocks shall be managed as a
                     equation. Biological, ecological, economic and so-                      unit or in close coordination;
                     cial factors are considered along with the maxi-                 (4)    conservation and management mea-
                     mum sustainable yield to safeguard the best inter-                      sures shall not discriminate between
                     ests of the nation.                                                     residents of different states. If it be-
                                                                                             comes necessary to allocate or assign
                              The act established a fisheries conserva-                      fishing privileges among various U.S.
                     tion zone that extends 200 miles offshore of the                        fishermen, such allocation shall be (a)
                     United States and its territories. Within this area,                    fair and equitable to all such fisher-
                     the United States has sovereign rights to fish and                      men, (b) reasonably calculated to pro-
                     exclusive authority to manage fisheries except for                      mote conservation and (c) carried out
                     highly migratory species managed by international                       in such a manner that no particular
                     cooperation. In other words, foreign fishing is pro-                    individual, corporation or other entity
                     hibited unless authorized by an existing intema-                        acquires an excessive share of such
                     tional treaty or the secretary of the U.S. Depart-                      privileges;
                     ment of Commerce. Foreign nations must apply to                  (5)    conservation and management mea-
                     the United States for approval to fish within the                       sures shall, where practicable, pro-
                     200-mile zone or to fish for United States anadro-                      mote efficiency in the use of fishery
                     mous fish beyond 200 miles. The act clearly states                      resources, except that no such mea-
                     that preference to harvest fish within the 200-mile                     sure shall have economic allocation as
                     zone must go to U.S. fishermen. Unless there is an                      its sole purpose;
                     existing treaty, approval for foreign fishing within             (6)    conservation and management mea-
                     the conservation zone is only allowed for that                          sures shall take into account and al-
                     portion of a particular fishery's optimum sustain-                      low for variations among, and contin-
                     able yield that is not being harvested by U.S.                          gencies in, fisheries, fishery resources
                     fishermen. In 1983, the fisheries conservation zone                     and catches; and
                     was subsumed into the Exclusive Economic Zone.                   (7)    conservation and management mea-
                                                                                             sures shall, where practicable, mini-



                                                                                                  Ocean Resources Planning - Page 51









                       mize costs and avoid unnecessary du-                    adversely affect the implementation of the fishery
                       plication. [781                                         management plan. [801

                       All council regulations must be reviewed                         And what about a state's right to regulate
              by the National Marine Fisheries Service and                     activities beyond state waters from three to 200
              approved by the secretary of commerce before                     miles? Section 306(a) of the Magnuson Act pro-
              becoming law. The optimum yield concept is ap-                   vides, in part, that "no state may directly or indi-
              plied to each species for which a plan is developed.             rectly regulate any fishing which is engaged in by
                                                                               any fishing vessel outside its boundaries, unless
                       The South Atlantic Fishery Management                   the vessel is registered under the laws of such
              Council (SAFMC) manages fish stocks in the At-                   state." There has been some conflict over the inter-
              lantic Ocean from three to 200 miles off the coasts              pretation of this section. A federal court inter-
              of North Carolina, South Carolina, Georgia and                   preted Section 306(a) in the following fashion:
              east Florida to Key West. Because the North Caro-
              lina coast is a dividing line between northern and                        ... We do not believe Congress in-
              southern fish species, effort is underway in the                          tended to leave the door open for state
              U.S. Congress to gain legal representation for the                        regulation in the Exclusive Economic
              state on the Mid-Atlantic Fishery Management                              Zone; rather, we read this subsection
              Council.                                                                  to allow state regulation of vessels
                                                                                        registered under state law and fish-
                       The SAFMC has prepared fishery man-                              ing in state territorial waters ... . We
              agement plans for the following species: billfish,                        think Congress outlined a fairly com-
              bluefish, coral, king and Spanish mackerel, red                           plete and pervasive federal scheme in
              drum, sea scallops, shrimp, snapper-grouper, spiny                        the Magnuson Act and believe Con-
              lobster, summer flounder and swordfish. [79] With                         gress must have intended to occupy
              respect to each plan, the council has developed                           the field offishery management within
              federal commercial and recreational regulations.                          the Exclusive Economic Zone.... Con-
              As allowed by Section 1853 of the act, these regu-                        gress thus established a federal fish-
              lations may: designate zones where, and periods                           ery zone; provided the states with an
              when, fishing shall be limited or shall be permitted                      active role in managing the resources
              only by specified types of fishing vessels or with                        of the EEZ through their voting posi-
              specified types and quantities of fishing gear; es-                       tions on a council; granted the ulti-
              tablish specified limitations on the catch of fish                        mate responsibility for overseeing the
              (based on area, species, size, number, weight, sex,                       program to the secretary ofcommerce;
              incidental catch, total biomass or other factors),                        and left nothing pertaining to the
              which are necessary and appropriate for the con-                          EEZ for the states to regulate. South-
              servation and management ofthe fishery; prohibit,                         eastern Fisheries Association Inc. v.
              limit, condition or require the use of specified types                    Chiles, 979 F. 2d 1504 (1 1th Cir. 1992),
              and quantities of fishing gear, fishing vessels or                        vacating and remanding 772 F. Supp.
              equipment for such vessels, including devices to                          1263 (S.D. Fla. 1991).
              facilitate enforcement of the provisions of this act.                     Some fisheries management scholars see
                       The National Marine Fisheries Service -                 this interpretation as incorrect since many fisher-
              a branch of the National Oceanic and Atmospheric                 ies in the Exclusive Economic Zone have no federal
              Administration within the Department of Com-                     fishery management plan and the adjacent state
              merce - is the federal agency that administers the               continues to manage them. They suggest, at the
              Magnuson Act and develops fishery data to sup-                   very least, in the absence of a relevant federal plan,
              port management decisions. For the most part, the                that coastal states have jurisdiction to manage a
              Magnuson Act does not diminish the rights of                     fishery throughout the territorial sea (out to 12
              coastal states to manage fisheries within their                  miles) and even the 200-mile Exclusive Economic
              jurisdictional waters. An important exception are                Zone, subject to relevant federal constitutional
              instances where the secretary ofthe Department of                constraints. [811 State fisheries managers would
              Commerce determines that: (1) fishing for a par-                 likely accept this line of reasoning so long as it was
              ticular resource takes place predominately within                not in the form of a requirement - a requirement
              or beyond the Exclusive Economic Zone, (2) a                     that many managers think would burden their
              fishery management plan exists for the fishery and               already overwhelmed staffs. This and other issues
              (3) the state has taken an action or failed to take an           will likely be addressed this year as Congress
              action, the result of which will substantially and               considers reauthorization of the Magnuson Act.

              Ocean Resources Planning - Page 52








                                 Some Evolving Issues                               Division of Marine Fisheries since it is the re-
                                                                                    moval/harvest of a living resource from the marine
                              In addition to the Magnuson Act, both the             environment. Finally, if the activity involves more
                     Marine Mammal Protection Act and the Endan-                    than I acre, it could be regulated by the Division of
                     gered Species Act are scheduled for reauthoriza-               Land Resources as a mining activity.
                     tion this year. Both acts could be modified to have
                     a significant impact on fisheries management.                  Conclusion

                              To date, the Endangered Species Act's                          Fisheries management is a complex topic
                     principal impact on fishing has come from its                  involving management relationships among a host
                     federal agency consultation requirements and in-               of jurisdictions, each with competing interest
                     cidental take restrictions protecting marine mam-              groups. It involves the noble and difficult goals of
                     mals and sea turtles. A reauthorized version of the            protecting the resource and refereeing conflicts
                     Endangered Species Act and/or the Magnuson Act                 among a growing number of resource users. It
                     could bring a greater focus on designating critical            invokes a process that involves the art of compro-
                     habitat and implementing recovery plans. The                   mise - a search for solutions that must, above all,
                     result may be a Magnuson Act that is more ecosys-              ensure the continued health of fishery stocks and
                     tem-focused. Fishery management plans could be                 appear equitable to those who depend on stocks for
                     required to designate and protect habitat essential            their livelihood or enjoyment. IfNorth Carolinians
                     to achieving optimum yield of a species or a species           fail in this endeavor, we will lament the demise of
                     complex. Also, multispecies plans may be required              our fishery as the author did 100 years ago. We will
                     when there is a significant relationship among                 find ourselves "attempting to retrace the steps of
                     several species within a defined ecosystem.                    past waste and neglect (that) invariably follows in
                                                                                    locking the stable door after the horse has gone -
                              In the ocean waters off North Carolina's              vain regrets and fruitless self-reproach."
                     coast, there are some new issues that might be
                     better addressed by a more comprehensive/holistic              Recommendations
                     management approach. For, example, some con-
                     tend that through mismanagement, the reef fisher
                     is in trouble. To address the issue, it is suggested                    The task force should suggest to the Ma-
                     that such options as marine reserves be considered             rine Fisheries Commission that it:
                     to replenish stocks by protecting breeding grounds.
                     [821 Another issue involves sargassum harvest                           I. Define commercial fishers more restric-
                     and its potential impact on habitat. This issue has            tively. The fisheries committee of the Ocean Re-
                     been considered by the SAFMC's habitat and envi-               sources Task Force recognizes there is a large
                     ronmental protection committee.                                amount of commercial and fishing gear in coastal
                                                                                    and ocean waters. This quantity of gear is threat-
                              Finally, there has been concern recently              ening the resource and creating conflict on state
                     about removing live rock from the state's southern             waters. The committee sees a need to limit com-
                     coast. This activity involves the harvest of rock              mercial licenses to only those who depend on fish-
                     from the tidal zone evidently for commercial pur-              ing for their livelihood. This action would restrict
                     poses, Live rock is generally considered a limited             recreational fishers from using commercial gear.
                     resource in North Carolina since much ofthe state's            It may require an individual - rather than a ves-
                     ocean floor is composed of sand with little sub-               sel - license and would likely require legislative
                     strate to which living organisms can attach. Even              action.
                     though current excavation efforts appear small in
                     scale, activity could grow as bans on removing live                     The recently enacted moratorium on new
                     rock from federal and some state waters go into                commercial licenses should give the Marine Fish-
                     effect. Current removal activities, coupled with               eries Commission time to analyze the situation and
                     concern that they may increase in intensity, has               examine the feasibility of defining commercial fish-
                     generated interest among DEHNR officials. [831                 ers more restrictively.

                              The issue points to the need for coordina-                     II. Develop and require a saltwater recre-
                     tion and communication among several ofthe state's             ational fishing license. Revenue collected should
                     agencies. Excavation and removal of live rock is a             go into a dedicated fund for marine resources man-
                     development activity that could be regulated by                agement, enhancement, enforcement and admin-
                     the Division of Coastal Management under CAMA                  istration rather than the state's general fund.
                     [see Section 3]. It also falls underjurisdiction ofthe


                                                                                                 Ocean Resources Planning - Page 53









                      The fisheries committee agreed that ad-              Fisheries Commission and waters managed by the
             ditional revenue generated by a saltwater license             Wildlife Resources Commission are marked on all
             should not be a rationale for reducing current state-         major water bodies insofar as practicable. 15A
             appropriated funds for fishery management.                    NCAC 3Q.0105.

                      III. Work with the Coastal Resources Com-            [81 GS 113-132(e).
             mission and Environmental Management Commis-
             sion to develop guidelines, policies or rules for             [91 GS 143B-289.4.
             water zoning and investigate innovative ways to
             improve ocean management. A management com-                   [101 GS 143B-289.4(l)(b).
             mittee should be seated [see Section 3 of this re-
             port, recommendation IIA] by the heads of agen-               [111 GS 143B-289.4(2)(h) and GS 143B-289.4(l)(d).
             cies and commissions responsible for major pro-
             grams that affect coastal and ocean management.               [121 GS 113-224.
             The committee should integrate and coordinate
             agency and commission policies and coastal activi-            [131 GS 143B-289.4(l)(h).
             ties, identifying and resolving jurisdictional con-
             flict and overlap and recommending legislation,               [141 GS 143B-289.4(l)(f).
             rules and memoranda of understanding. This
             would be helpful in resolving issues such as the              [151 GS 143B-289.4(l)(g) and GS 113-228.
             removal of live rock.
                                                                           [161 GS 143B-289.4(l)(e) and GS 113-221(e). All
                      IV. Investigate state marine reserves as             proclamations must state the hour and date upon
             part of an integrated management scheme.                      which they become effective. They must be issued
                      V Work with the Department ofAdminis-                at least 48 hours before the effective date and time,
                                                                           except when the proclamation prohibits the taking
             tration to adopt policies regarding private uses of           of certain fishery resources for reasons of public
             the ocean's public trust waters and resources.                health. In these situations, the proclamation is
                      In developing a policy, current leasing              effective immediately.
             schemes for the state's public trust lands and wa-            [171 15A NCAC 7H .0003(b).
             ters should be considered. These include the fee
             charged by the Marine Fisheries Commission to                 [181 GS 143B-289.5.
             ocean pier owners for their use of land and water,
             the lease fee charged to shellfish aquaculturists             [191 GS. 113-152 and 15A NCAC 30.0102. North
             for their use of submerged lands and the water                Carolina vessels are those that have their primary
             column, and the Department of Administration's                situs in the state. Motorboats with North Carolina
             ability to levy fees on mining and other uses of              numbers under the provisions of Chapter 75A of
             state submerged land.                                         the General Statutes are deemed to have their
                                                                           primary situs in North Carolina. This includes
             Footnotes                                                     documented vessels that list a North Carolina port
                                                                           as home port. GS 113-152(a)(2). Commercial fish-
             [11 North Carolina and its Resources, State Board             ing operations are defined as all operations prepa-
             of Agriculture, 1896.                                         ratory to, during and subsequent to the taking of
                                                                           fish: (1) with the use of commercial fishing equip-
             [21 GS 113-133.                                               ment or (2) by any means, if a primary purpose of
                                                                           the taking is to sell the fish. Commercial fishing
             [31 Id.                                                       also includes operations that take people fishing
                                                                           for hire.
             .[41 Id.                                                      [201 GS 113-152(a)(3) and GS 113-161. These
             [51 Id.                                                       licenses may be restricted in terms of area, gear
                                                                           and fishery so that nonresidents are licensed to
             [61 GS 113-134.1. Also see GS 113-131.                        engage in North Carolina fisheries on the same or
                                                                           similar terms that North Carolina residents can be
             [71 GS 113-132 and 15A NCAC 3Q.0 104. The div-                licensed to engage in the fisheries of such other
             iding lines between waters managed by the Marine              jurisdiction.


             Ocean Resources Planning - Page 54










                       [211 GS 75A-4.
                                                                                            [481 15A NCAC 3L.0205.
                       [221 GS 75A-2(5).
                       [23) A study committee of the Marine Fisheries                       [491 GS 113-185 and 15A NCAC 31 .0008.
                       Commission is assessing the feasibility of a saltwa-                 [501  15A NCAC 3J .040 1. The proclamation au-
                       ter recreational fishing license. Commission mem-                    thority allowed under this regulation can be exer-
                       ber Mike Orbach chairs this committee, which will                    cised anytime between the Friday before Easter
                       report its findings to the Joint Legislative Commis-                 and Dec. 31.
                       sion on Seafood and Aquaculture.
                                                                                            [511 For example, conflict in the Bogue Banks area
                       [241 GS 113-271.                                                     between mullet fishers and pier owners led to a
                                                                                            proclamation that requires stop nets to be set one-
                       [251  GS 113-154.                                                    half mile from piers.

                       [261  GS 113-152(f).                                                 [521 15A NCAC 31 .0009.

                       [271  15 NCAC 3K .0303.                                              [531 15A NCAC 3J .0 105.

                       [281  GS 113-154.1. (Effective until July 1, 1996.)                  [541 15ANCAC3R.0011.

                       [291  GS 113-156. (Effective until July 1, 1996.)                    [551 15A NCAC 3R.0011.

                       [301  GS 113-156.1.                                                  [561 15A NCAC 3J.0202(2). It is unlawful to use
                                                                                            trawls within one-half mile of the beach between
                       [311  GS 113-167.                                                    the Virginia line and Oregon Inlet.

                       [321  GS 113-167(b)(1).                                              [571 15A NCAC 31 .0007. This rule allows the
                                                                                            fisheries director to proclaim any coastal waters
                       [331  15A NCAC 3J.0105.                                              closed or restricted to taking or attempting to take
                                                                                            when the method (equipment) used is a serious
                       [341  15A NCAC 31.0006.                                              threat to an endangered or threatened species
                                                                                            listed pursuant to 16 U.S.C. 1533(c) Endangered
                       [351  15A NCAC 31.0012.                                              Species Act.

                       [361  15A NCAC 3N.0002(a).                                           [58] Telephone conversation with Katie West, N.C.
                                                                                            Division of Marine Fisheries.
                       [371  15A NCAC 3R.0003.
                                                                                            [591 Murray, James D.; James J. Bahen; and Roger
                       [381  15A NCAC 3N.0004.                                              A. Rulifson. "Management Considerations for
                                                                                            Byratch in the North Carolina and Southeast
                       [391  15A NCAC 3N.0002(c).                                           Shrimp Fishery." Fisheries, Vol. 17, No. 1, 1992.

                       [401  15A NCAC 3N.0005(a).                                           [601 Id. Altho  ugh the biological impact of bycatch
                                                                                            on finfish stocks is uncertain for many species,
                       [411  15A NCAC 3N.0005(b).                                           there is evidence it may already be affecting red
                       [421  15A NCAC 31.0010(a).                                           snapper, mackerel and weakfish stocks.
                                                                                            [611 15A NCAC 3J.0104(a)(2).
                       [431  15A NCAC 3R.0002.                                              [621 15A NCAC 3J .0 104(d).
                       [441  15A NCAC 3R.0002(a)(5).
                                                                                            [63115A NCAC 3M.0102.
                       [451  15A NCAC 3R.0001.                                              [641 15A NCAC 3L .0102.
                       [461  15A NCAC 31.0007(c).
                                                                                            [651 Murray.
                       [471  15A NCAC 3R.0010.


                                                                                                           Ocean Resources Planning - Page 55










               [661 15ANCAC3J.0101-.0400,                                         [83] Memorandum from Kim Crawford, N.C. Divi-
                                                                                  sion of Coastal Management, to John Hedrick,
               [671 15A NCAC 31.0005.                                             N.C. Division of Coastal Management, June 29,
               [681 15A NCAC 3J.0400.                                             1994.

               [691 Public Law 539, 77th Congress, 1942.

               [701 GS 113-252.

               [711 Public Law 712, 81st Congress, 1950.

               [721 In 1984, the U.S. Congress passed the Striped
               Bass Conservation Act (P.L. 98-613), which pro-
               vided incentives for states to comply with the
               ASMFC Interstate Fishery Management Plan for
               Striped Bass. This was the only case in which the
               ASMFC was given enforcement tools. This act was
               repealed with the passage of the Atlantic Coastal
               Fisheries Cooperative Management Act.

               [731 Atlantic States Marine Fisheries Commis-
               sion, Interstate Fisheries of the Atlantic Coast,
               ISBN 0-9630072-0-3, 1991.

               [741 Public Law 103-206, 1993.

               [751 Atlantic States Marine Fisheries Commis-
               sion, Interstate Fisheries of the Atlantic Coast,
               ISBN 0-9630072-0-3, 1991.

               [761 16 U.S.C.A. 1801-1882.

               [771 16 U.S.C.A. 1852 (a).

               [781 16 U.S.C.A. 1851 (a)(l)-(7).

               [79] In North Carolina, the Marine Fisheries
               Commission has given the fisheries director broad
               proclamation authority over most of these fisher-
               ies. This power enables the director to monitor the
               federal fishery management plans and coordinate
               state and federal regulation.

               [801 16 U.S.C.A. 1856.

               [811 Ballweber, Jeffrey A. and Richard Hildreth,
               "Fishery Management Implications of the U.S.
               Territorial Sea Extension," Proceedings of Coastal
               Zone 91 at 1388.


               [821 Huntsman, Gene. Address to the conference
               on Managing the Coastal Ocean for the 21st Cen-
               tury: North Carolina's Role. May 20, 1993.






               Ocean Resources Planning - Page 56










                                                                                         Marine pollution can result, incidentally,
                                                                                 from the variety of activities discussed in previous
                                                                                 sections - the extraction of hard minerals, oil and
                                              @LL                                gas exploration and exploitation, marine fisheries
                                         .... . ..
                                                                                 and recreational activities. However, other activi-
                                                                                 ties have as their primary purpose the introduc
                                                                                 tion of potentially polluting substances into the
                                                                                 marine environment. Some - ocean outfall dis-
                                                                                 charges, ocean dumping and marine littering -
                                                                                 are discussed in this section.

                                                                                 Ocean Outfalls for Domestic
                                                                                 Wastewater


                                                                                         The idea of discharging domestic waste-
                                                                                 water directly into the ocean may be a novelty for
                                                                                 North Carolinians, but it's an established practice
                                                                                 in other coastal regions of the United States. Ur-
                                                                                 ban areas with limited capacity to dispose of sew-
                                                                                 age waste have been discharging directly into the
                                                                                 ocean for years.

                                                                                         Depending on their locations and local
                                                                                 oceanographic conditions, ocean outfalls have met
                                                                                 with varying success. [11 In North Carolina, the
                                                                                 wide dispersal of the coastal population makes the
                                                                                 cost of an extensive collection and disposal system
                                                                                 a serious consideration. There are also questions
                                                                                 about the suitability of the local oceanography for
                                                                                 effective and safe disposal of large quantities of
                                                                                 effluent. Variables such as longshore drift, upwell-
                                                                                 ings, downwellings, the Gulf Stream and currents
                                                                                 in the nearshore ocean would have a bearing on the
                                                                                 success of an outfall. [21

                                                                                         Waste in North Carolina's coastal region
                                                                                 is disposed of by centralized collection and treat-
                                                                                 ment facilities or by underground septic systems.
                                                                                 Centralized systems discharge directly into coastal
                                                                                 rivers, contributing to nutrient enrichment. In
                                                                                 recent years, enriched waters have spawned algae
                                                                                 blooms that have lowered the quality ofsome of the
                                                                                 state's most productive coastal waters. Septic sys-
                                                                                 tems often fail in coastal soils, and even in opti-
                                                                                 mum conditions their use must be limited to
                                                                                 sparsely populated areas - areas that are rapidly
                                                                                 disappearing in the state's coastal region.

                                                                                         Alternatives are being considered in light
                                                                                 of the increasing demands for wastewater treat-
                                                                                 ment and disposal. Even though outfalls seem to be
                                                                                 viable, there are concerns. There is concern regard-
                                                                                 ing the effluent and its effect on the marine envi-
                                                                                 ronment and water quality. There is also concern
                                                                                 about greater nonpoint source pollution from in-
                                                                                 creased development. Increased development could
                                                                                 result if current growth constraints, such as inad-


                                                                                             Ocean Resources Planning - Page 57










             equate wastewater disposal capability, are re-                         The Clean Water Act allows individual
             moved.                                                        states to set up their own water quality programs
                                                                           so long as they are consistent with federal guide-
                      These and other issues were discussed in             lines. [61 Among other things, these guidelines
             detail at an April 1993 forum in Atlantic Beach,              require that the state adopt an anti-degradation
             N.C. The forum focused on the technical consider-             policy and implement procedures to conserve,
             ations of ocean outfalls and the growth manage-               maintain and protect existing uses and water qual-
             ment implications ofcentralized wastewater treat-             ity. [71 In 1974, EPA gave North Carolina the
             ment. Two case studies, from Virginia and New                 authority to implement its own management pro-
             Jersey, offered practical evidence for planning,              gram. Consequently, the General Assembly adopted
             building and operating an ocean outfall. For a                laws that outline the state's water quality strat-
             thorough discussion of these issues, see the pro-             egy. Most of these laws can be found in Chapter
             ceedings of the North Carolina Ocean Outfall Con-             143, Article 21, Part I ofthe N.C. General Statutes.
             ference. Write the Neuse River Council of Govern-             These laws establish the Environmental Manage-
             ments at P.O. Box 1717, 233 Middle Street, New                ment Commission (staffed by the Division of Envi-
             Bern, NC 28563, or call 919/638-3185.                         ronmental Management) and authorize it to adopt
                                                                           and establish standards for water quality classifi-
                        The Clean Water Act and                            cations of state waters. [81 The commission has de-
                         State Water Quality Law                           veloped classifications and standards f6r both fresh
                                                                           and tidal waters. [91 In accordance with the feder-
                      The Water Pollution Control      Act, more           al act, discharges are only allowed if they do not
             commonly called the Clean Water Act, is the lead-             violate water quality standards. A state permit
             ing federal law addressing water quality, includ-             process determines the impact of a discharge. [101
             ing point source discharges from ocean outfalls and           It should be noted that Section 401 of the Clean
             nonpoint source pollution from increased develop-             Water Act requires all applicants for federal li-
             ment. [31 To limit point source pollution, the act            censes or permits to obtain a state water quality
             requires that: (1) the waters of the country be               certification for any activity that may discharge
             classified according to their highest and best use;           into state waters. [111
             (2) for each classification, water quality standards
             be developed; and (3) point source discharges be                       Under state law, any discharge into the
             allowed only if the discharge does not violate the            ocean is prohibited unless permitted by Environ-
             water quality standards of the receiving waters.              mental Management Commission regulation. [121
             Point source discharges are defined as "any dis-              North Carolina has not developed a classification
             cernible, confined and discrete conveyance, includ-           system or standards for ocean waters other than
             ing but not limited to any pipe ... from which                those in place for tidal salt waters. Instead, the
             pollutants are or may be discharged." [41 Waste-              commission in 1983 adopted EPA!s standards for
             water from an ocean outfall would be a point source           the discharge ofwastewaters to the Atlantic Ocean.
             discharge. The act creates a permit process to
             assess the impact of discharges. These permits are                     Under the Clean Water Act, no permit
             issued or denied through a process established by             may be issued for discharge into the territorial sea,
             Seciion 402 of the Clean Water Act. The permits               contiguous zone or ocean without complying with
             are often referred to as N?DES (National Pollution            Section 403 as administered by NPDES. [13) Regu-
             Discharge Elimination System) permits.                        lations that implement this section provide the
                                                                           criteria that EPA or state permit writer must use
                      The Clean Water Act is administered by               when evaluating NPDES applications for ocean
             the U.S. Environmental Protection Agency (EPA)                discharges. [14] The criteria address ocean water
             As a general rule, EPA develops the regulatory'               quality impacts as well as human health and
             standards to fulfill the act's broad directives. How-         biological impacts and transportive pollutants.
             ever, the act also requires other federal agencies to         More specifically, the criteria prohibit any dis-
             participate in implementing the law. For example,             charge into the ocean if it leads to the "unreason-
             the U.S. Army Corps of Engineers executes the                 able degradation" of the marine environment.
             permit program that regulates placement of fill               Unreasonable degradation is defined as: (1) sig-
             material into navigable waters. This program is               nificant adverse changes in ecosystem diversity,
             often called the 404 Program after the section of             productivity and stability of the biological commu-
             the act that created it. [5] Dredging and filling             nity within the area of discharge and surrounding
             operations associated with the construction of an             biological communities; (2) threats to human health
             ocean outfall would likely require a 404 permit.              through direct exposure to pollutants or through
                                                                           consumption of exposed aquatic organisms; or (3)


             Ocean Resources Planning - Page 58










                     loss of aesthetic, recreational, scientific or eco-                   This raises an interesting question about
                     nomic values that is unreasonable in relation to              ocean outfalls. Since the construction of an ocean
                     the benefits of the discharge. [151 If information is         outfall would require a CAMA permit, could the
                     insufficient to make a reasonablejudgment on any              Division of Coastal Management and the Coastal
                     of these criteria, no permit may be issued. The               Resources Commission play a role in growth man-
                     criteria are sufficiently general to leave a great            agement by looking at the entire system and its
                     deal of discretion as to the limitations that may be          potential impacts on the public trust and estuarine
                     imposed. North Carolina is free to adopt more                 waters AECs? Could the division place growth
                     restrictive standards, but it may not weaken fed-             management conditions on a permit for an ocean
                     eral standards.                                               outfall? By removing constraints on growth, an
                                                                                   ocean outfall has the potential to negatively affect
                             Normally, a wastewater discharge into                 the quality of estuarine waters. On the other hand,
                     the ocean must meet the Clean Water Act's tech-               it could help estuarine waters by removing waste-
                     nology-based secondary treatment requirements.                water from the sluggish circulation patterns of the
                     A permit applicant can, however, seek a waiver                enclosed estuarine system and placing it into ocean
                     from these requirements under Section 301(h) of               waters. These are questions that must be jointly
                     the act. To obtain a waiver, the applicant must               considered by the Coastal Resources Commission
                     demonstrate that less-than-secondary treatment                and Environmental Management Commission.
                     will allow for the protection and propagation of a
                     balanced indigenous population of fish, shellfish             Ocean Dumping and Marine Lifter
                     and wildlife and allow for water-based recreation.
                     In addition, the applicant must develop satisfac-                     For years, the oceans have been used as
                     tory toxin controls and monitoring programs. Waiv-            dumping grounds - a place to discard sewage
                     ers must be renewed every five years.                         sludge, garbage and other solid waste or simply a
                                                                                   convenient place to toss litter from a boat. The
                              It should be noted'that the federal govern-          remainder of this section looks at the myriad of
                     ment has a systematic check over all state permits            state, federal and international law that has devel-
                     for ocean discharges. In other words, notwith-                oped in response.
                     standing a federally approved state program, the
                     EPA must be notified of a state permit for ocean                                 Federal Law
                     discharge; if the EPA administrator objects, the
                     permit must be modified by the state or denied. [161                  Section 407 of the Rivers and Harbors Act
                          CAMA and the Development of an                           of 1899, referred to as the Refuse Act, prohibits the
                                                                                   discharge from vessels and piers "any refuse mat-
                                       Ocean Outfall                               ter of any kind or description whatever ... into any
                                                                                   navigable water of the United States ... ." [171
                             As discussed in Section 3 ofthis report, the          Exempted from this provision are wastes inciden-
                     N.C. Coastal Area Management Act (CAMA) re-                   tal to the improvement ofnavigable waters and the
                     quires a permit for development activities within             construction of public works (the main rationales
                     areas of environmental concern (AECs). An ocean               for the Rivers and Harbors Act). The Rivers and
                     outfall would be a development activity in the                Harbors Act applies to state and federal waters.
                     public trust and estuarine waters AECs. It would
                     also be an activity requiring "permission, licens-                    Chapter 27 of the Marine Protection, Re-
                     ing, approval, certification or authorization from            search and Sanctuaries Act of 1972, commonly
                     another state or federal agency" and would conse-             referred to as the Ocean Dumping Act, governs
                     quently require a CAMA major development per-                 dumping at sea. [181 This act, implemented prima-
                     mit. Major development applications are reviewed              rily by EPA, was designed to prohibit most ocean
                     by the Division of Coastal Management using in-               dumping and regulate by permit the acceptable
                     formation fromthe applicant, applicableAEC stan-              types and quantities of waste. Section 1411 states
                     dards, comments by other state and federal agen-              that material cannot be transported for the pur-
                     cies and comments from third parties. When a                  pose of dumping into ocean waters by any person
                     development activity occurs both inside and out-              from the United States or any U.S. vessel from any
                     side of an AEC, the Division of Coastal Manage-               location. Ocean waters include both state and fed-
                     ment often requires information about the entire              eral waters. This section also prohibits dumping
                     project - not just those activities proposed for the          into the U.S. territorial sea and its contiguous zone
                     AEC. This practice, referred to as the total develop-         any material that has been transported from a
                     ment concept, is intended to look at the full range           location outside the United States "to the extent
                     of potential impacts to the AEC.                              that (the material) may affect the territorial sea of

                                                                                                Ocean Resources Planning - Page 59










              the United States." The act defines material as:                    govern ocean dumping in their waters, and that
                                                                                  may affect their jurisdictional waters. [231 Even
                        ... matter of any kind or description,                    though North Carolina has not developed a com-
                        including, but not limited to, dredged                    prehensive ocean dumping program, it does have
                        material; solid waste; incinerator resi-                  several statutes (discussed in this section) that are
                        due; garbage; sewage; sewage sludge;                      designed to control dumping and littering in state
                        munitions; radiological, chemical and                     waters.
                        biological warfare agents; radioactive
                        materials; chemical, biological and                                 Federal law also regulates pollution dis-
                        laboratory waste; wrecked or dis-                         charged from ships. The Prevention of Pollution
                        carded equipment; rock; sand; exca-                       from Ships Act is the U.S. Congress'incorporation
                        vation debris; and industrial, munici-                    of the 1973 International Convention for the Pre-
                        pal, agricultural and other waste                         vention of Pollution from Ships, commonly known
                        [191                                                      as MARPOL. [24] The act specifically incorporates
                                                                                  Annex V of the international treaty, which covers
                        This definition does not include sewage                   garbage disposal. [25] Garbage is defined as:
              from watercraft (covered by the Marine Sanitation
              Device provisions of the Clean Water Act), and it                             ... all kinds of victual, domestic and
              covers oil only to the extent that it is being trans-                         operational waste, excluding fresh
              ported to the ocean for dumping. Dumping is de-                               fish and parts thereof, generated dur-
              fined as a "disposition of material" with certain                             ing the normal operation of ships and
              caveats. It does not mean a disposition of effluent                           liable to be disposed of continuously
              governed by the Clean Water Act, such as waste-                               or periodically... . [261
              water discharged from a permitted ocean outfall.
              The act is also not meant to impinge on the con-                              The regulations of Annex V outline the
              struction of certain fixed structures or artificial                 types of garbage that are prohibited. Plastics are
              reefs used for fisheries management.                                prohibited altogether. They include synthetic ropes,
                                                                                  fishing nets and bags. Other wastes are regulated
                        Notwithstanding the caveats, the defini-                  and may be disposed of at varying distances from
              tion is quite broad and will prohibit the vast major-               the shoreline (depending on the type of waste).
              ity of dumping activities. Even so, the act does
              contemplate the possibility of some dumping and                               There are exceptions to these rules. For
              establishes a permit program. 1201 For example,                     example, Annex V does not apply to:
              Section 1413 establishes a permit program for
              dumping dredged material. Permits to dump this                        (a)     the disposal of garbage from a ship
              material are administered jointly by the EPA and                              necessary for the purpose of securing
              the secretary of the Army (who controls the Corps                             the safety of a ship, the health of its
              of Engineers, which has primary authority over                                personnel or saving life at sea;
              the dredging of navigable waters). Before dredged                     (b)     the escape of garbage resulting from
              spoil can be dumped at sea, the secretary of the                              the damage to a ship or its equip-
              Army must find that there is no other economically                            ment, provided all reasonable pre-
              feasible alternative, and the administrator of EPA                            cautions have been taken before and
              must determine that the dumping will not "result                              after the damage to prevent or mini-
              in an unacceptable adverse impact on municipal                                mize the escape; and
              water supplies, shellfish beds, wildlife, fisheries                   (c)     the accidental loss of synthetic fish-
              (including spawning and breeding areas) or recre-                             ing nets or synthetic material inci-
              ational areas." [21]                                                          dental to the repair of such nets,
                                                                                            provided that all reasonable precau-
                        No permits may be granted for the dis-                              tions have been taken to prevent
              posal of radiological, chemical and biological war-                           such loss.
              fare agents, high level radioactive waste and medi-
              cal waste. It is also unlawful to dump sewage                                 The Coast Guard has primary enforce-
              sludge and industrial waste. [221                                   ment responsibility under the act in U.S. waters.
                        The act allows states to develop criteria -                         The attorney general of North Carolina
              subject to a finding by the EPA administrator that                  has issued an opinion finding the state's laws
              they are consistent with the federal program - to                   compatible with Annex V and, thus, not pre-empted
                                                                                  by the federal act.


              Ocean Resources Planning - Page 60










                                     North Carolina Law                                 (a)     waste volume reduction at the source,
                                                                                        (b)     recycling and reuse,
                               In 1991, the N.C. Marine Science Council                 (c)     composting,
                      published "Debris in the Sea," a report that dis-                 (d)     incineration with energy production,
                      cusses the causes of marine litter and the laws and               (e)     incineration for volume reduction,
                      programs to combat the problem. [271 It also                      (f)     disposal in landfills.
                      makes recommendations to ameliorate the short-
                      comings in law and policy, proposing the following                        Each county in the state, either individu-
                      state policy:                                                   ally or in cooperation with its municipalities, must
                                                                                      develop a comprehensive solid waste management
                               It shall be the policy of the state of                 plan. Plans must address the disposal methods
                               North Carolina to eliminate all litter                 listed above and must be consistent with other
                               and debris from the waters of North                    state guidelines for solid waste management. Plans
                               Carolina and to cooperate with other                   are submitted for approval to the Division of Solid
                               public and private entities in the elimi-              Waste Management in the Department of Envi-
                               nation of litter and debris from the                   ronment, Health and Natural Resources (DEHNR).
                               state's marine environment.                            Once these goals and policies are fully imple-
                                                                                      mented, the state is likely to see a reduction in the
                               The report recommends that the state: (1)              amount of solid waste finding its way into ocean
                      consolidate its responsibilities for litter control in          waters.
                      a single state department/commission; (2) adopt a
                      law similar to MARPOL (the report refers to the                           II, North Carolina's litter laws
                      federal act, which incorporates Annex V of
                      MARPOL); (3) increase fines for violation of the                          North Carolina's statutes contain provi-
                      state's litter laws; (4) require the reduction of               sions that make it unlawful to dispose of solid
                      waste and encourage reusable and biodegradable                  waste or litter in its waters. For example, General
                      packaging; and (5) provide economic incentives for              Statute 14-399(a) states that:
                      litter control. The report also recommends that the
                      state formulate an extensive education and public                         No person ... shall intentionally or
                      awareness campaign to influence attitudes about                           recklessly throw, scatter, spill orplace,
                      the need for a clean marine environment. The                              or intentionally or recklessly cause to
                      state's Big Sweep Program continues to make                               be blown, scattered, spilled, thrown
                      great strides toward this recommendation.                                 or placed or otherwise dispose of any
                                                                                                litter upon any public property or
                               Although most recommendations in the                             private property not owned by him
                      report are valid, few have been thoroughly carried                        within this state or in the waters of
                      out.                                                                      this state... . (emphasis added)

                               Finally, the report recognizes that North                        Litter is defined broadly as:
                      Carolina has a maze of laws and regulations deal-
                      ing with the disposal of litter and other solid                           ... any garbage, rubbish, trash, refuse,
                      wastes in the marine environment. These laws are                          can, bottle, box, container, wrapper,
                      complex and often confuse people who use the                              paper, paper product, tire, appliance,
                      marine environment or who enforce the state's                             mechanical equipment,-tool, machin-
                      laws and regulations. Following is a summary of                           ery, wood, motor vehicle or motor ve-
                      state law.                                                                hicle part, vessel, aircraft, farm ma-
                                                                                                chinery or equipment, sludge from a
                               I. Solid waste manaaement                                        waste treatment facility, water sup-
                                                                                                ply treatment plant, or air pollution
                               Reducing waste should lead to a reduction                        control facility, dead animal, or dis-
                      in the amounts of waste that require disposal.                            carded material in any form resulting
                      General Statute 130A-309.04 sets out the state's                          from domestic, industrial, commer-
                      solid waste management policies and goals. Basi-                          cial, mining, agricultural or govern-
                      cally, they are designed to promote alternatives to                       mental operations.... [281
                      solid waste disposal. The statute sets out a hierar-
                      chy of methods for managing solid waste, in de-                           On its face, this statute appears to concede
                      scending order of preference:                                   that accidental littering may reasonably occur.
                                                                                      Even so, any violation under this statute will


                                                                                                    Ocean Resources Planning - Page 61









              depend on individual issues ofintent, recklessness                          No person shall place, throw, deposit
              and causation. The burden of proof is on the opera-                         or discharge, or cause to be placed,
              tor of the littering vehicle or watercraft to show                          thrown, deposited or discharged on
              that it was not an intentional or reckless act.                             the waters of this state or into the
              Penalties for violating the statute range from a                            inland lake waters of this state, any
              misdemeanor with a $100 fine (for disposing of less                         litter, raw sewage, bottles, cans, pa-
              than 15 pounds of litter) to a felony punishable by                         pers or other liquid or solid materials
              up to three years in prison (for disposing of more                          that render the waters unsightly,
              that 500 pounds or for disposing of litter from                             noxious or otherwise unwholesome
              commercial operations). [291                                                so as to be detrimental to the public
                                                                                          health or welfare or to the enjoyment
                        It should be noted that the penalties out-                        and safety of the water for recre-
              lined in this statute are criminal, not civil. Many                         ational purposes. [321
              state and federal environmental statutes provide
              for civil penalties. Typically, the criminal penalties                      Arguably, this statute is stronger than the
              are reserved for the most egregious cases, such as                 proceeding litter law because it does not include
              knowing violations.                                                language about intent or reckless behavior. It
                                                                                 simply requires that the articulated wastes not be
                        There are advantages to civil penalties.                 deposited into state waters. However, some of the
              First, fines collected from civil penalties can be                 statute's language poses an interesting question.
              allocated to programs that address litter and solid                For example, what criteria should be used to deter-
              waste problems. Criminal fines collected in North                  mine a noxious rendering of state waters?
              Carolina, by direction of the Constitution, "belong
              to and remain in the several counties, and shall be                         The act also prohibits the discharge of
              faithfully appropriated and used exclusively for                   medical wastes. Medical waste is defined as:
              maintainingfree public schools." [301 Consequently,
              all fines collected for illegally disposing of solid                        ... any solid waste that is generated
              waste and litter in North Carolina remain in each                           in the diagnosis, treatment or immu-
              county and must be used-for public education. This                          nization ofhuman beings or animals,
              creates an interesting issue when criminal penal-                           in research pertaining thereto, or in
              ties are collected on activities in the state's ocean                       the production or testing ofbiologicals
              waters, since these areas do not appear to be within                            [331
              the boundaries of any county [see Section 2 of this
              report on Ocean Jurisdiction].                                              DEHNR enforces these provisions and is
                                                                                 authorized to enter into agreement with the N.C.
                        A second advantage to civil penalties is                 Wildlife Resources Commission to share manpower
              that they open the possibility of another outlet for               and expenses to "secure broader enforcement ofthe
              enforcement - the administrative process. Most                     provisions of this (act)...." [341 As with the state's
              civil cases are handled within state agencies. Crimi-              litter law, only criminal penalties are allowed for
              nal cases are addressed by the judicial process                    violations. There is also no provision for registra-
              unless the alleged violator concedes guilt and pays                tion/license revocation for violations.
              the fine. By limiting penalties to criminal enforce-
              ment, the state is constrained in its enforcement                           The prohibition against dumping medical
              ability.                                                           waste is reinforced by GS 143-214.2A, which states
                                                                                 that it is "unlawful for any person to engage in
                        It is interesting to note that a motor ve-               conduct that causes or results in the dumping,
              hicle operator who violates this statute has a one-                discharging or disposal, directly or indirectly, of
              point penalty assigned to his or her driving license               any medical waste to the open waters of the Atlan-
              record by the Division of Motor Vehicles. [311 This                tic Ocean over which the state hasjurisdiction or to
              type of penalty could be extended to include boat-                 any waters of the state." Under this statute, both
              ing, fishing and hunting licenses. Those state-                    civil and criminal penalties are allowed. The civil
              granted privileges are necessarily conditioned on                  penalties include a fine ofno more than $25,000 for
              prescribed behaviors. Abstaining from littering                    a first offense and no more than $50,000 for a
              should be one of them.                                             subsequent offense. Criminal penalties are im-
                                                                                 posed for willful violations. [351 Under this stat-
                        North Carolina's Boating Safety Act also                 ute, the Division of Environmental Management,
              regulates the dumping of waste in the state's navi-                DEHNR, has primary enforcement power. [361
              gable waters. The act states:


              Ocean Resources Planning - Page 62









                               In addition to these laws, the state has               agement commissions should assess their roles
                     another statute regulating certain practices in                  and responsibilities in issuing ocean outfall per-
                     navigable waters, including solid waste disposal.                mits. This task could be performed by the manage-
                     General Statute 76-40(a) states that:                            ment committee proposed by recommendation IIA,
                                                                                      Section 3 of this report.
                               It shall be unlawful for any person,
                               firm or corporation to place, deposit,                          II. Marine debris and litter
                               leave or cause to be placed, deposited
                               or left, either temporarily or perma-                           A. The task force should review the recom-
                               nently, any trash, refuse, rubbish,                    mendations in the Marine Science Council's 1991
                               garbage, debris, rubble, scrapped ve-                  "Debris in the Sea" [see Appendix 81. The task force
                               hicle or equipment or other similar                    should suggest that all state laws regarding the
                               waste material in or upon any body of                  disposal of solid waste in navigable waters be
                               navigable water in this state; ... viola-              consolidated with any new legislation providing
                               tion of this section shall constitute a                for both civil and criminal penalties.
                               misdemeanor, punishable by a fine of
                               up to five hundred dollars or impris-                           B. The task force should recommend a
                               onment for up to six months, or both,                  violation point system for boats and other vessels
                               in the discretion of the court.                        similar to that of the state's Division of Motor
                                                                                      Vehicles. License  'and registration should be re-
                               Penalties for violating this     statute are           voked after numerous violations.
                     criminal. Enforcement is a unified effort by the
                     Wildlife Resources Commission, DEHNR and the                     Footnotes
                     Environmental Management Commission. [371
                               Finally, it should be noted that General               [11 Copeland, B.J. "Coastal Waste Disposal and
                                                                                      Ocean Outfalls," WaterWise, Vol. 1, No. 1, N.C. Sea
                     Statute 143-214.2B requires that vessel operators                Grant College Program, Spring 1993.
                     in state waters take precautions to ensure that
                     certain contaminants do not enter state waters.                  [21 Id.
                     Vessel operators shall "store fuel, oil, paint, var-
                     nish, solvent, pesticide, insecticide, fungicide, algi-          [31 33 U.S.C.A. 1251 et seq.
                     cide or any other hazardous liquid in one or more
                     closed containers that are adequate to prevent the               [41 33 U.S.C.A. 1362(14).
                     release of the items into the waters of the state."
                     Recommendations                                                  [51 33 U.S.C.A. 1344.
                                                                                      [61 33 U.S.C.A. 1342.
                               I. Ocean outfall
                                                                                      [7115 NCAC 2B.0201. (For North Carolina's anti-
                               A. The task force should ask the Environ-              degradation policy.)
                     mental Management Commission and Division of
                     Environmental Management to review the EPA                       [81 GS 143-214.1.
                     ocean discharge criteria. The commission and the
                     division may want to assess the ability of these                 [91 15A NCAC 2B.0211-.0212.
                     criteria to protect the ocean off North Carolina's
                     coast should an outfall be proposed. The state may               [101 GS 143-215.1.
                     wish to continue to use EPA!s criteria or add more
                     stringent criteria to protect the unique character-              [111 33 U.S.C.A. 1341.
                     istics of its coastal ocean.
                               B. The task force should ask the Coastal               [121 GS 143-214.2(c).
                     Resources Commission and Division of Coastal                     [131 33 U.S.C.A. 1343.
                     Managementto assess theirabilities to place growth
                     management requirements on a CAMA major de-                      [141 40 CFR 125.120-125.124.
                     velopment permit for ocean outfall construction
                     [see Section 3 of this report, recommendation IDI.               [151 Id.
                     The Coastal Resources and Environmental Man-



                                                                                                    Ocean Resources Planning - Page 63










               [161 33 U.S.C.A. 1342(d).

               [171 33 U.S.C.A. 401 et seq.

               [181 33 U.S.C.A. 1401-1445.

               [19) 33 U.S.C.A. 1402(c).

               [20] The criteria for this permit program can be
               found at 33 U.S.C.A. 1412.


               [211 33 U.S.C.A. 1413(d).

               1221 33 U.S. C.A. 1414(b), also known as the Ocean
               Dumping Ban Act of 1988.

               [231 33 U.S.C.A. 1416(d).

               [241 33 U.S.C.A. 1901.

               [251 33 U.S.C.A. 1901(b).

               [261 33 U.S.C.A. 1901(a)(3).

               [271 N.C. Marine Science Council, "Debris in the
               Sea," 1991.

               [281 GS 14-399(i)(4).

               [291 GS 14-399(c) - (k).

               [30] Article IX, Section 7.

               1311 GS 14-399(fl).

               [321 GS 75A-10(c).


               [331 GS 130A-290(18).


               [341 GS 75-17(b).

               [351 GS 143-214.2A(b) and (c).

               [361 GS 143-214.2A(b)(6).

               [371 GS 76-40(c).















               Ocean Resources Planning - Page 64










                                                                                                 As the population of coastal towns and
                                                                                       counties has grown over the years, so too have the
                                                                                       recre
                                                                                             ational uses of North Carolina's marine wa-
                                         @AT                                           ters. People fish, boat, ski@ surf, swim and dive
                                                                                       there. But these competing uses create conflict,
                                                                                       which governments are consequently trying to
                                                                                       prevent, mediate and resolve through regulation.

                                                                                                 Local governments are often best suited to
                                                                                       regulate nearshore uses, such as swimming and
                                                                                       surfing. However, as pointed out in Section 2, they
                                                                                       are limited to the power granted to them by the
                                                                                       state Legislature. This is particularly true when it
                                                                                       comes to ocean waters, which are usually beyond
                                                                                       localjurisdiction. As uses and conflicts have height-
                                                                                       ened, the Legislature has granted local govern-
                                                                                       ments the power to regulate some nearshore uses.
                                                                                       Of course, in exercising this power, local govern-'
                                                                                       ment must be aware of state and federal law that
                                                                                       applies concurrently with any local ordinance.

                                                                                                 As discussed in Section 3, the state has
                                                                                       stewardship responsibilities over resources and
                                                                                       uses within its ocean waters. The public has rights
                                                                                       to use state lands and waters. And the state has the
                                                                                       responsibility ofprotectingthese public trust rights
                                                                                       - a task that must be balanced with its responsi-
                                                                                       bility to protect state resources. In 1985, the Gen-
                                                                                       eral Assembly codified a list of public trust rights
                                                                                       and recognized that the courts may continue to
                                                                                       define and expand them. The legislation provides:

                                                                                                 ... "public trust right" means those
                                                                                                 rights held in trust by the state for
                                                                                                 the use and benefit of the people of
                                                                                                 the state in common. They are estab-
                                                                                                 lished by common law as interpreted
                                                                                                 by the courts of this state. They in-
                                                                                                 clude, but are not limited to, the right
                                                                                                 to navigate, swim, hunt, fish and
                                                                                                 enjoy all recreational activities in the
                                                                                                 water courses of the state and the
                                                                                                 right to freely use and enjoy the state's
                                                                                                 ocean and estuarine beaches and
                                                                                                 public access to the beaches. [11

                                                                                                 Specific legislation gives the state stew-
                                                                                       ardship responsibilities. For example, General Stat-
                                                                                       ute 113-131 recognizes that marine and estuarine
                                                                                       wildlife resources belong to the people of the state;
                                                                                       it then gives the responsibility of managing these
                                                                                       resources to the N.C. Department ofEnvironment,
                                                                                       Health and Natural Resources (DEHNR) and the
                                                                                       Wildlife Resources Commission. Consequently, as
                                                                                       discussed in Section 6 of this report, the Division of
                                                                                       Marine Fisheries in DEHNR is responsible for
                                                                                       implementing and enforcing recreational fishing


                                                                                                     Ocean Resources Planning - Page 65









              regulations (developed by the Marine Fisheries                             Motorboat (a subunit of vessel) is defined
              Commission) in the state's ocean waters. Unless                   flas any vessel equipped with propulsion machin-
              the state has deferred its responsibility to local                ery of any type, whether or not such machinery is
              government or the federal government recognizes                   the principal source of propulsion... ." 191
              a paramount right (to protect navigation, for ex-
              ample) in state waters, the state regulates most                           In addition to its general powers over
              recreational activities.                                          unlawful activities within itsjurisdiction, the com-
                                                                                mission can develop safety rules for specific bodies
                       This section discusses some ofthe primary                of water (local waters). These rules can: (1) regu-
              recreational uses of state waters and how they are                late the operation ofvessels, including speed zones;
              regulated.                                                        (2) promote boating and water safety for boaters,
                                                                                swimmers, fishermen and others; and (3) control
              Recreational Boating                                              the placement and maintenance of navigation aids
                                                                                and markers, conforming with governing provi-
                       North Carolina's Boating Safety Act pro-                 sions of law. [101 The U.S. Coast Guard's Uniform
              motes the "safety for persons and property in and                 State Waterway Marking System is used on- North
              connected with the use, operation and equipment                   Carolina waters.
              of vessels ... ." [21 A vessel is "every description of
              watercraft or structure, other than a seaplane on                          More specifically, the commission can pro-
              the water, used or capable ofbeing used as a means                hibit vessels from public swimming areas and
              of transportation or habitation... . " [31 State wa-              establish speed zones at public boat ramps, mari-
              ters are defined as "any waters within the territo-               nas, boat service areas and other congested waters
              rial limits of this state, and the marginal sea                   where safety hazards have been demonstrated.
              adjacent to this state and the high seas when
              navigated as a part of a journey or ride to or from                        Before making any rules, the commission
                                           It                                   must investigate the recreational and safety needs
              the shore of this state        [4]
                                                                                of the water body in question. It may hold public
                       The Wildlife Resources Commission imple-                 hearings as part of that investigation. [111
              ments the act through a three-member motorboat
              committee appointed by the commission chair.                               The commission can adopt rules on its own
              Committee members are selected from the com-                      initiative or act at the request ofa state subdivision
              mission. [51                                                      (local government). A rule request from local gov-
                                                                                ernment is limited to waters "within the sub-
                       The act establishes an identification sys-               division's territorial limits." [12] This is a substan-
              tem that requires all vessels to acquire and display              tial limitation to regulating ocean waters since
              an identification number unless exempted by the                   most local government territory does not extend
              statute. [61 It also establishes a classification scheme          into the ocean.
              for motorboats and lists the type of equipment and
              lights each class is required to maintain. [7]                             A violation of the commission's rules is
                                                                                generally a misdemeanor punishable by a fine not
                       The act makes certain practices unlawful:                to exceed $250. [131
               (a)     operat(ing) any motorboat or vessel                               In recent years, the use ofjet skis (some-
                       or manipulat(ing) any water skis,                        times referred to as personal watercraft or thrill
                       surfboard or similar device on the                       craft) and airboats has increased in the state's
                       waters of this state in a reckless or                    estuarine and ocean waters. With this increase has
                       negligent manner so as to endanger                       come conflict and attempts by state and local gov-
                       the life, limb or property of any per-                   ernment to regulate solutions. The Wildlife Re-
                       son;                                                     sources Commission has the power to regulate jet
               (b)     manipulat(ing) any water skis, surf-                     skis and airboats in the state's estuarine and ocean
                       board, nonmotorized vessel or simi-                      waters. And local governments clearly have the
                       lar device on the waters of this state                   authority to request commission regulation of ac-
                       while under the influence of an im-                      tivities within their jurisdictional waters. How-
                       pairing substance... . [81                               ever, the commission has not become involved in
                                                                                regulating these types of boating activities, and
                       Subsections (c) and (d)      outlaw the     dis-         the trend has been for local governments to at-
              charge of noxious litter and medical waste           [see         tempt regulation at the local level rather than
              Section 7 for a discussion of waste discharges].                  request commission action.

              Ocean Resources Planning - Page 66









                              Because of the uncertainty surrounding                waters "shall (not) permit such vessel to approach
                     oceanfront cities' ability to regulate ocean activi-           closer than 50 feet to any structure from which a
                     ties, the state Legislature passed General Statute             diver's flag is then being displayed." [201 Violators
                     160A-176.2 authorizing some towns to regulate                  are guilty of a misdemeanor and subject to a fine of
                     Itpersonal watercraft" in the Atlantic Ocean. As of            no more than $25. [211
                     early 1994, the Legislature had given this author-
                     ity to Atlantic Beach, Cape Carteret, Carolina                 Recreational Fish "n
                     Beach, Caswell Beach, Emerald Isle, Holden Beach,
                     Long Beach, Ocean Isle Beach, Southport, Sunset                         Fishing activities, including recreational
                     Beach, Topsail Beach, Wrightsville Beach and                   fishing, are discussed in Section 6 of this report.
                     Yaupon Beach. Additional oceanfront communi-                   The saltwater fishing license is a leading recre-
                     ties will likely be added as conflicts grow. It is             ational fishing issue.
                     important to note that the legislation sets no
                     oceanward limit to which the cities can regulate.              Recommendations
                              Local ordinances passed under the au-
                     thority of GS 160A-176.2 must be consistent with                        I. Because of the increasing ocean water
                     the Boating Safety Act. In general, local ordi-                conflicts, the task force should encourage the Gen-
                     nances can be more restrictive so long as they do              eral Assembly to consider authorizing local gov-
                     not prohibit the regulated activities. [141                    ernments to regulate a broad range ofactivities out
                                                                                    to one mile seaward of the mean low tide. This
                     Surfing, Swimming, Sk"fing                                     power must be consistent with state and federal
                     and Scuba Diving                                               law [see Section 2, recommendation III].
                              Many oceanfront towns have adopted or-                         Cities and counties should have authority
                     dinances to regulate swimming and surfing through              to. regulate jet skiing, airboating, surfing, swim-
                     the authority granted them by General Statute                  ming, diving and commercial activities originating
                     160A-176.1. Unlike GS 160A-176.2, this statute                 from the public beach (such as porpoise-watching
                     grants regulatory power to all oceanfront towns. It            expeditions). The ability to regulate, however,
                     sets no oceanward limit to which they can regulate.            should not include the ability to prohibit these
                                                                                    activities. Instead, local governments should be
                              In addition to local power, the state's Boat-         encouraged to accommodate as many uses as pos-
                     ing Safety Act gives the Wildlife Resources Com-               sible through water-use zoning.
                     mission power to regulate these activities. The act
                     prohibits reckless or negligent skiing, surfing or                      Current law allows coastal towns to regu-
                     similar activities. [151 It also forbids a boater from         late swimming, surfing (and probably diving) in
                     towing anyone on 'skis, surfboard or a similar                 ocean waters. Jet skis can be regulated in some
                     device without an onboard observer or rearview                 coastal towns. The law does not establish an
                     mirror for monitoring that person or equipping the             oceanward regulatory limit, and counties are not
                     skier or surfer with a life preserver. [161 The act            included in the legislation.
                     further prohibits water skiing, surfboarding or
                     similar activities from one hour after sunset to one                    II. The task force should recommend that
                     hour before sunrise. [17] Local ordinances passed              the Wildlife Resources Commission comprehen-
                     under authority of GS 160A-176.1 must be consis-               sively evaluate jet skis and airboats, considering
                     tent with the Boating Safety Act. In general, local            nuisance and safety concerns.
                     ordinances can be more restrictive so long as they
                     do not altogether prohibit or outlaw swimming or                        III. The task force should recommend that
                     surfing. [181                                                  the Marine Fisheries Commission consider a salt-
                                                                                    water recreational fishing license. Revenue col-
                              Local governments likely have the author-             lected should go into a dedicated fund for marine
                     ity under GS 160A-176.1 to regulate scuba diving,              resources management, enhancement, enforcement
                     since it involves swimming. The Boating Safety                 and administration rather than the state's general
                     Act regulates skin and scuba diving in state wa-               fund [see Section 6, recommendation Ill.
                     ters. For example, it states that "no person shall
                     engage in skin or scuba diving ... without display-
                     ing a diver's flag from a mast, buoy or other struc-
                     ture      [19] Anyone operating a vessel in state


                                                                                                 Ocean Resources Planning - Page 67










               Footnotes


               [11 GS 1-45. 1.


               [21 GS 75A-1.


               [31  GS 75A-2(5).


               [41  GS 75A-2(6).

               [51  GS 75A-3.

               (61  GS 75A-7.


               [71  GS 75A-6.


               [81  GS 75A-10.

               [91  GS 75A-2(l).

               [101  GS 75A-15.


               [111  GS 75A-15(a).

               [121  GS 75A-15(b).

               [131  GS 15A-18(a).

               [141  GS 160A-176.2(a).

               [151  GS 75A-10(a).

               [161  GS 75A-13(a).

               [171  GS 75A-13(b).

               1181  GS 75A-176.1(a).

               [191  GS 75A-13.1(a).

               [201  GS 75A-13.1(c).

               [211, GS 75A-18(b).

















               Ocean Resources Planning - Page 68










                                                                                       Introduction


                                                                                                Over the years, as living and nonliving
                                                                                        esources have been harvested and land has been
                                                                                       developed, areas have been recognized as special
                                                                                       because of ecological, cultural or historical quali-
                                                                                       ties. To protect these areas, laws have established
                                                                                       national and state parks, wild and scenic rivers
                                                                                       and preserved the archeological and historical sites
                                                                                       that map history and our cultural heritage. Even
                                                                                       though there is a tradition of protecting these
                                                                                       special places on land, the idea of doing so in the
                                                                                       ocean is relatively new. In recent years, however,
                                                                                       new legislation has been passed and existing legis-
                                                                                       lation manipulated to protect special sites in the
                                                                                       marine environment. The most notable of these
                                                                                       efforts - the National Marine Protection, Re-
                                                                                       search and Sanctuaries Act; the Abandoned Ship-
                                                                                       wreck Act; and North Carolina's Archaeological
                                                                                       Resources Protection Act - are discussed in this
                                                                                       section.


                                                                                       The Marine Protection, Research and
                                                                                       Sanctuaries Agt


                                                                                                The Marine Protection, Research and Sanc-
                                                                                       tuaries Act attempts to extend the rationale for
                                                                                       protecting most national parks to ocean areas with
                                                                                       similar qualities. Section 1431 of the act reads:
                                                                                                The U.S. Congress finds that:
                                                                                         (1)    this nation historically has recognized
                                                                                                the importance of protecting special
                                                                                                areas of its public domain, but these
                                                                                                efforts have been directed almost ex-
                                                                                                clusively to land areas above the high
                                                                                                watermark;
                                                                                         (2)    certain areas of the marine environ-
                                                                                                ment possess conservation, recre-
                                                                                                ational, ecological, historical, research,
                                                                                                educational or aesthetic qualities that
                                                                                                give them special national, and in some
                                                                                                cases, international significance;
                                                                                         (3)    while the need to control the effects of
                                                                                                particular activities has led to enact-
                                                                                                ment of resource-specific legislation,
                                                                                                these laws cannot in all cases provide
                                                                                                a coordinated and comprehensive ap-
                                                                                                proach to the conservation and man-
                                                                                                agement of special areas ofthe marine
                                                                                                environment;
                                                                                         (4)    a federal program that identifies spe-
                                      N E'.
                                       SO





























































                                                                                                cial areas of the marine environment
                                                                                                will contribute positively to marine
                                                                                                resources conservation research and
                                                                                                management;


                                                                                                    Ocean Resources Planning - Page 69










               (5)     such a federal program will also serve                          The act gives the secretary of the U.S.
                       to enhance public awareness, under-                    Department of Commerce the authority to identify
                       standing, appreciation and wise use of                 areas for sanctuary status. In reviewing an area for
                       the marine environment; and                            designation, the secretary must consider:
               (6)     protection of these special areas can
                       contribute to maintaining a natural                     (1)     the area's natural resource and eco-
                       assemblage of living resources for fu-                          logical qualities, including its contri-
                       ture generations. [11                                           bution to biological productivity, main-
                                                                                       tenance ofecosystern structure, main-
                       To address the above findings, the act lays                     tenance ofecologically or commercially
             out a series of purposes or goals. They are:                              important or threatened species or
                                                                                       species assemblages, maintenance of
               (1)     to identify and designate as national                           critical habitat of endangered species
                       marine sanctuaries areas of the ma-                             and the biogeographic representation
                       rine environment which are of special                           of the site;
                       national significance;                                  (2)     the area's historical, cultural, archaeo-
               (2)     to provide authority for comprehen-                             logical or paleontological significance;
                       sive and coordinated conservation and                   (3)     the present and potential uses of the
                       management of these marine areas,                               area that depend on maintenance of
                       and activities affecting them, in a man-                        the area's resources, including com-
                       ner that complements existing regula-                           mercial and recreational fishing, sub-
                       tory authorities;                                               sistence uses, other commercial and
               (3)     to support, promote and coordinate                              recreational activities, and research
                       scientific research on, and monitoring                          and education ... ;
                       of, the resources ofthese marine areas,                 (4)     the existing state and federal regula-
                       especially long-term monitoring and                             tory and management authorities
                       research Pf these areas;                                        applicable to the area and the ad-
               (4)     to enhance public awareness, under-                             equacy of those authorities to fulfill
                       standing, appreciation and wise use of                          the purposes and policies of this chap-
                       the marine environment;                                         ter;
               (5)     to facilitate to the extent compatible                  (5)     the manageability of the area;
                       with the primary objective of resource                  (6)     the public benefits to be derived from
                       protection all public and private uses                          sanctuary status ... ;                                          I
                       of the resources of these marine areas                  (7)     the negative impacts produced by
                       not prohibited pursuant to other au-                            management restrictions on income-
                       thorities;                                                      generating activities such as living
               (6)     to develop and implement coordinated                            and nonliving resources development;
                       plans for the protection and manage-                            and
                       ment of these areas with appropriate                    (8)     the socioeconomic effect of sanctuary
                       federal agencies, state and local gov-                          designation. [31
                       ernments, Native American tribes and
                       organizations, and other public and                             As a prerequisite to designating a specific
                       private interests concerned with the                   site, the secretary must list all potential marine
                       continuing health and resilience of                    sites that may be considered for designation. [41
                       these marine areas;                                    This evaluation list is an attempt to categorize
               (7)     to create models of, and incentives for,               sites that meet the initial threshold of special area.
                       ways to conserve and manage these                      The secretary can select from the list certain sites
                       areas;                                                 worthy of active candidate status. [5] To be listed
               (8)     to cooperate with global programs en-                  as active, the site must fulfill the purposes of the
                       couraging conservation of marine re-                   act and be "of special national significance due to
                       sources; and                                           its resources or human-use values ... ." [61 The
               (9)     to maintain, restore and enhance liv-                  secretary must also find that existing federal and
                       ing resources by providing places for                  state laws are insufficient for a comprehensive and
                       species that depend upon these ma-                     coordinated conservation effort of the site and that
                       rine areas to survive and propagate.                   the site in question is manageable. Selection as an
                       [21                                                    active candidate begins the formal sanctuary des-
                                                                              ignation-evaluation process.



             Ocean Resources Planning - Page 70









                               For active candidate sites, the secretary                 (5)    detonation below the surface of the
                     must prepare a resource assessment report as part                          water of any explosive mechanism;
                     of the designation process. [71 This report must                    (6)    seabed drilling or coring... . [101
                     document all present and potential uses of the
                     area, including commercial and recreational fish-                          Even though each sanctuary has specifi-
                     ing and other commercial or governmental uses.                    cally tailored plans, there are certain similarities
                                                                                       among activities prohibited in most areas. One is
                               The secretary is also required to notify a              the prohibition against extracting minerals (min-
                     host of parties that could be affected by the desig-              ing) and drilling for oil or gas.
                     nation. In addition to providing notice through
                     publication in the Federal Register, the secretary                         In 1988 and 1992, the sanctuary program
                     must contact the media in directly affected commu-                was substantially amended. The National Atmo-
                     nities. The secretary must also submit notice to the              spheric and Oceanic Administration was given
                     appropriate committees of both the House and                      authority to review federal agency actions that
                     Senate of the U.S. Congress. [81 Finally, the                     may affect a sanctuary resource. Important provi-
                     secretary must hold as least one public hearing in                sions for enforcement and liability were added to
                     the coastal area that will be affected by the desig-              give greater authority to sanctuary designation
                     nation.                                                           and management plans. [111 The amendments
                                                                                       state that it is unlawful to:
                               A draft environmental impact statement
                     and management plan must also be prepared as                        (1)    destroy, cause the loss of or injure any
                     part of the designation process.                                           sanctuary resource managed under law
                                                                                                or regulations for that sanctuary;
                               In the case of a sanctuary that is to be                  (2)    possess, sell, deliver, carry, transport
                     located partially or entirely within the seaward                           or ship by any means any sanctuary
                     boundary of a state, the governor of that state can                        resource taken in violation of this sec-
                     find the designation unacceptable. In this case, the                       tion .... [121
                     designation will not take effect in the area of the
                     sanctuary lying within the seaward boundary of                             A sanctuary resource is "any living or
                     the state. [91                                                    nonliving resource ... that contributes to the ...
                               The culmination of the designation pro-                 value of the sanctuary." [131 The amendments
                     cess is the issuance of the final environmental                   create a rebuttable presumption that all sanctuary
                     impact statement and management plan. The man-                    resources onboard a vessel were taken in' violation
                     agement plan is published in the Code of Federal                  of the act or regulations. [141 Enforcement au-
                     Regulations and describes the sanctuary. It also                  thorities are granted broad powers to board, search
                                                                                       and seize vessels and to impose penalties of up to
                     lists activities that are permissible and prohibited              $100,000 per violation per day. [151
                     and describes the permitting process for permis-
                     sible activities.                                                          To date, 13 marine sanctuaries have been
                               Each sanctuary has its own special char-                designated in two phases. The first phase began
                     acteristics; consequently, the management plans                   with the USS Monitor in 1975 and included the
                     are individually tailored. For example, the USS                   additional designations of'Key Largo and Looe Key
                     Monitor sanctuary off North Carolina's coast has                  off Florida; Gray's Reef off Georgia; the Channel
                     its own list of prohibited activities to protect the              Islands, Point Reyes and Cordell Banks in Califor-
                     historic nature of the site. They include a prohibi-              nia; and Fagatele Bay in the American Samoas.
                     tion of the following activities:                                 The second and more recent phase designated the
                                                                                       Florida Keys, Monterey Bay, Stellwagen Bank, the
                                                                                       Hawaiian Humpback Whale and the Flower Gar-
                       (1)     anchoring in any manner, stopping,                      den Banks. Two sites are proposed offWashington
                               remaining or drifting without power                     state's shoreline - Olympic Coast and Northwest
                               at any time;                                            Straits sanctuaries. The second phase of sanctuar-
                       (2)     any type of subsurface salvage or                       ies differs from the first in that it encompasses
                               recovery operation;                                     extensive ocean areas of both federal and state
                       (3)     any type of diving, whether by an                       jurisdiction. Designation of large ocean areas al-
                               individual or by a submersible;                         lows management of more activities that affect
                       (4)     lowering below the surface of the                       sanctuary resources and provides the opportunity
                               water any grappling, suction, con-                      to develop an ecosystem approach to resource man-
                               veyor, dredging or wrecking device;                     agement. [161

                                                                                                     Ocean Resources Planning - Page 71










                                   Conclusion                                            Consequently, North Carolina has title to
                                                                                all embedded abandoned shipwrecks within its
                       One of the primary reasons that Congress                 territorial waters. Wrecks that are not embedded
              passed the Marine Protection, Research and Sanc-                  must either be -on the National Register or eligible
              tuaries Act was the belief that existing laws were                for the register in order to be state-owned. The
              not sufficient to manage vital marine resources in                United States retains title to any abandoned ship-
              a coordinated and comprehensive way. The Na-                      wreck in or on (embedded or not) its lands. The act
              tional Marine Sanctuary Program creates marine                    defines embedded as:
              parks where important ecological and historical
              resources can be preserved and protected. The act                          ... firmly affixed in the submerged
              also promotes multiple uses of sanctuaries. Find-                          lands or in coralline formations such
              ing a balance between protection and use is pre-                           that the use of tools of excavation is
              senting the program one of its greatest challenges.                        required in order to move the bottom
                                                                                         sediments to gain access to the ship-
              Abandoned Shipwrecks                                                       wreck, its cargo and any part thereof
              Special Archaeological Sites                                               ....[201
                                                                                         Congress did not define "abandoned," al-
                       Many ships have been lost trying to navi-                though it is defined by a regulation of the U.S.
              gate through North Carolina's treacherous capes.                  Department of Interior's National Park Service,
              As a consequence, this stretch of ocean shoreline is              the agency responsible for implementing the act.
              known as the "Graveyard of the Atlantic."                         Abandoned is defined in the Code of Federal Regu-
                                                                                lations as:
                       It is estimated that over 3,700 sunken
              vessels lie off the North Carolina coast - the                             Any shipwreck to which title voluntar-
              majority within five miles of shore. [171 Most ofthe                       ily has been given up by the owner
              seafaring ships are thought to be off the Outer                            with the intent of never claiming a
              Banks or near the mouth of the Cape Fear River                             right or interest in the future without
              near Wilmington. Following is a description ofhow                          vesting ownership in any other per-
              the federal government and North Carolina have                             son. By not taking any action after a
              addressed issues of shipwreck ownership, explora-                          wreck incident either to mark and sub-
              tion and recovery, and the preservation ofthe often                        sequently remove the wrecked vessel
              vital history represented by many of these wrecks.                         and its cargo or to provide legal notice
                                                                                         of abandonment to the U.S. Coast
                      The Abandoned Shipwreck Act                                        Guard and the U.S. Army Corps of
                                     of 1987                                             Engineers, as required under provi-
                                                                                         sions in the Rivers and Harbors Act
                       In passing the Abandoned Shipwreck Act,                           (33 U.S.C. 409), an owner shows in-
              Congress found that states are responsible for                             tent to give up title. Such shipwrecks
              managing certain shipwrecks that have been de-                             ordinarily are treated as being aban-
              serted and to which the owner has relinquished                             doned after the expiration of 30 days
              ownership rights. [181 The act first gives title of                        from the sinking. [211
              abandoned wrecks to the federal government and                             The definition also states that if a wreck
              then to the states if the wreck is:
                                                                                owner is paid the full value ofthe vessel (such as an
               (1) '   embedded in submerged lands of a                         insurance company indemnifying a loss), the pay-
                       state;                                                   ing party possesses title for purposes of the act.
               (2)     embedded in coralline formations                         Any sunken warship or other vessel entitled to
                       protected by a state on submerged                        sovereign immunity remains the property of its
                       lands of a state; or                                     flag nation without formal action to the contrary.
               (3)     on submerged lands of a state and is                     This sovereign immunity standard also applies to
                       included in or determined eligible                       any cargo, unless it was unlawfully captured,
                       for inclusion in the National Regis-                     whereby title is vested in the nation or person from
                       ter (of Historic Places as determined                    which it was illegitimately taken. Shipwrecks en-
                       under the National Historic Preser-                      titled to sovereign immunity are warships and
                       vation Act of 1966). [191                                other vessels used for military or governmental,
                                                                                noncommercial purposes at the time of sinking.
                                                                                Many shipwrecks off North Carolina's coast are


              Ocean Resources Planning - Page 72








                      foreign vessels, although relatively few are war-                           The criteria for eligibility are outlined in
                      ships. Even so, some historical data is needed to                  the federal regulations.
                      determine if a particular ship was used for pur-
                      poses at the time of its sinking that would entitle it                      To qualify, districts, sites, buildings,
                      to sovereign immunity.                                                      structures and objects must possess
                                                                                                  integrity of location, design, setting,
                               Absent such sovereign immunity, it ap-                             materials, workmanship, feeling and
                      pears from the statutory and regulatory language                            association. They must be significant
                      that most ofNorth Carolina's shipwrecks are aban-                           in American history, architecture, ar-
                      doned. It is interesting to note that many of the                           chaeology and culture, and they must:
                      wrecks off the Outer Banks occurred before the
                      United States existed, let alone before the federal                 (a)     be associated with events that have
                      Rivers and Harbors Act.                                                     made significant contribution to the
                                                                                                  broad patterns of our history;
                               Practically, the persons, companies or na-                 (b)     be associated with the lives of persons
                      tions that owned these vessels had no means to                              significant in our past;
                      mark their locations or seek their recovery since                   (c)     embody the distinctive characteristics
                      most went down before technology allowed for such                           of a type, period or method of construc-
                      processes. With regard to shipwrecks whose cargo                            tion; represent the work of a master;
                      contained bullion or othervaluable resources, there                         possess high artistic values or; repre-
                      may be contention over what constitutes the volun-                          sent a significant and distinguishable
                      tary release of title with the intent of never claim-                       entity whose components may lack in-
                      ing a future interest.                                                      dividual distinction;or
                                                                                          (d)     have yielded, or may be likely to yield,
                               Even so, the act cannot apply to a ship-                           information important in prehistory
                      wreck - classified as abandoned or not - unless it                          or history. [241
                      is actually located. The National Geographic Soci-
                      ety studied North Carolina's shipwrecks in 1970                             The National Park Service monitors the
                      with the help of Outer Banks historian David                       National Register, but nominations are submitted
                      Stick. Although they identified more than 500                      by the state historic preservation officer. In North
                      wrecks, their information is not accurate enough to                Carolina, the director of the Division of Archives
                      find the remains of most of those vessels. The                     and History is also the state historic preservation
                      Underwater Archaeology Unit of the N.C. Division                   officer. The N.C. National Register Advisory Com-
                      of Archives and History has disclosed that there                   mittee reviews potential nominations and pro-
                      are about 3,700 shipwrecks in North Carolina                       vides the state historic preservation officer with
                      territorial waters or off its coast. [221 Yet the                  information about prospective properties and sites.
                      division estimates that only a small percentage of                 1251 With regard to shipwrecks, the National
                      the state's bottomlands have been surveyed for                     Register Advisory Committee is aided by the Un-
                      submerged archaeological sites, leaving the vast                   derwater Archaeological Unit and its divers and
                      majority of these shipwrecks unaccounted for.                      researchers. As mentioned already, locating a ship-
                                                                                         wreck is often the most challenging concern. It
                               Recognizing that nonembedded, aban-                       must still be explored and studied to determine its
                      doned shipwrecks may have historical significance,                 eligibility. This takes time and resources. The
                      Congress provided that title to these wrecks could                 National Park Service has final authority in listing
                      also be claimed and transferred to the states ifthey               sites in the National Register. North Carolina has
                      qualified for the National Register. The act states                57 shipwrecks listed in the National Register, the
                      the following:                                                     most for any state. New York ranks second with 17
                                                                                         listings. [261
                               ... The secretary ofthe interior, after
                               consultation with the appropriate                                  The Abandoned Shipwreck Act recognizes
                               state historic preservation officer,                      that shipwrecks offer adjacent states recreational
                               shall make a written determination                        and educational opportunities, biological sanctu-
                               that an abandoned shipwreck meets                         aries and possibilities for historical research. [271
                               the criteria for eligibility for inclu-                   States are charged with protecting natural re-
                               sion in the National Register of His-                     sources and habitat areas, guaranteeing recre-
                               toric Places       [23]                                   ational exploration of shipwreck sites and allowing
                                                                                         for appropriate public and private sector recovery
                                                                                         of wrecks consistent with the protection of histori-


                                                                                                       Ocean Resources Planning - Page 73










              cal values and environmental integrity. [281 The                          Holders of permits or licenses shall be
              act encourages states to create underwater parks                          responsible for obtaining permission
              for additional protection and provides funds under                        of any federal agencies having juris-
              the National Historic Preservation Act for the                            diction, including the U.S. Coast
              "study, interpretation, protection and preserva-                          Guard, the U.S. Department of the
              tion of historic shipwrecks and properties." [291                         Navy and the U.S. Army Corps of
              Federal guidelines assist states in developing leg-                       Engineers prior to conducting any
              islation and management programs for shipwreck                            salvage operations. [311
              sites covered by the legislation. [301 However, the
              federal government is not authorized to review                            If a shipwreck or other archaeological site
              state programs, and transfer of ownership is not                 is more than 50 years old, it becomes an archaeo-
              dependent on federal approval of state manage-                   logical resource eligible for more protection under
              ment schemes.                                                    the state's Archaeological Resources Protection Act.

                   North Carolina's Law of Abandoned                                  North Carolina's Archaeological
                   Shipwrecks and Other Underwater                                        Resources Protection Act
                            Archaeological Sites                                        North Carolina passed the Archaeological
                       The state Legislature has passed law spe-               Resources Protection Act in 1981, stating as its
              cifically for abandoned shipwrecks and other un-                 primary purpose "secur(ing), for the present and
              derwater archaeological sites. General Statute 121-              future benefit of the people of North Carolina, the
              22 et seq. recognizes that federal law (including the            protection of archaeological resources and sites
              Abandoned Shipwreck Act and the Submerged                        that are on state lands ... .'t [32] The law was
              Lands Act) establishes the conditions for asserting              drafted to control the illegitimate use and exploita-
              state ownership over abandoned wrecks within the                 tion of the state's archaeological resources.
              state's jurisdictional waters. However, in addition
              to federal law, the state statute establishes a 10-                       An archaeological resource is defined by
              year threshold for which a shipwreck must remain                 the act as "any material remains of past human life
              unclaimed before its rules and regulations become                or activities that are at least 50 years old and that
              operable (under federal law, there is a presump-                 are of archaeological interest...." [331 Under this
              tion of abandonment after 30 days).                              definition, any shipwreck 50 or more years old that
                                                                               is of interest to archaeologists would be considered
                       Under the act, the Department of Cultural               a "resource" to be regulated by this act. In line with
              Resources (which contains the Division ofArchives                the act's intent to protect archaeological resources
              and History and the Underwater Archaeological                    and allow for research, the statute establishes a
              Unit) is the custodian of all of North Carolina's                permit process. [341 Permit applications are re-
              abandoned shipwrecks and underwater archaeo-                     ceived and reviewed by the Department of Cultural
              logical artifacts. The law establishes a permit/                 Resources (which contains the Division ofArchives
              license process to control exploration, recovery or              and History) in consultation with the N.C. Depart-
              salvage operations for shipwrecks that have re-                  ment of Administration. [351 Permits may be is-
              mained unclaimed for 10 years. Permit applica-                   sued if it is found that:
              tions may be granted if the department finds they
              are in the best interest of the state. Permits may                 (1)    the applicant is qualified to carry out
              include, but need not be limited to, the following                        the permitted activity;
              terms:                                                             (2)    the proposed activity is undertaken
                                                                                        for the purposes offurthering archaeo-
               (1)     payment of monetary fees to the                                  logical knowledge in the public inter-
                       department;                                                      est;
               (2)     that a portion or all of such relics or                   (3)    the currently available technology and
                       artifacts be delivered to the custody                            the technology the applicant proposes
                       and possession of the department;                                to use are such that the significant
               (3)     that a portion or all of such relics or                          information contained in the archaeo-
                       artifacts may be sold or retained by                             logical resource can be retrieved;
                       the licensee;                                             (4)    the funds and the time the applicant
               (4)     that a portion or all of such relics or                          proposes to commit are such that the
                       artifacts may be sold or traded by                               significant information contained in
                       the department....

              Ocean Resources Planning - Page 74










                              the archaeological resources can be                   through development activities (ocean mining).
                              retrieved;
                      (5)     the archaeological resources that are                          As North Carolina looks to its ocean wa-
                              collected, excavated or removed from                  ters for more resources and development opportu-
                              state lands and associated records and                nities, it is likely that such development, explora-
                              data will be preserved by a suitable                  tion and exploitation will adversely affect an
                              university, museum, or other scien-                   archaeologically significant site. This is especially
                              tific or educational institution;                     true given the large number of shipwrecks within
                      (6)     the activity pursuant to the permit is                the state's territorial sea.
                              not inconsistent with any manage-
                              ment plan applicable to the state lands                        North Carolina's Underwater
                              concerned; and                                                 Archaeological Site Inventory
                      (7)     the applicant shall bear the financial
                              responsibility for the reinternment of
                              any human burials or human skeletal                            North Carolina's UnderwaterArchaeologi-
                              remains excavated or removed as a                     cal Unit, Division of Archives and History, keeps
                              result of the permitted activities. [361              an inventory of state sites. As of May 1991, there
                                                                                    were about 500 underwater archaeological sites
                              In addition, the Department of Cultural               recorded. These sites are divided into the following
                     Resources can add to the permit "any terms, condi-             five categories with the number of sites notated:
                     tions or limitations ... deem(ed) necessary...." [371
                                                                                     (1)     small craft 1  158 sites; less than 40
                              It should be noted that the permit criteria                    feet long and built for daytime use;
                     do not allow these resources to be used for private             (2)     steamships - 72 sites; 40 of Civil
                     interests. This is important for shipwrecks with                        War vintage, including 21 on the Na-
                     valuable metals as cargo that could represent a                         tional Register;
                     great source of wealth. A shipwreck that is consid-             (3)     sailing vessels - 92 sites;
                     ered an archaeological resource may not be legally              (4)     unpowered vessels (barges)- 70 sites;
                     used for personal gain by salvagers. The shipwreck              (5)     miscellaneous - remains of wharves
                     and its cargo are treated as state property to be                       and piers on predominantlynearshore
                     used for the public interest.                                           sites that lend historical information
                                                                                             on commerce and local trade. [411
                              The statute lists prohibited acts and civil           CAMA and Natural and Cultural
                     penalties. For example, it is unlawful to excavate,
                     remove, damage or otherwise alter or deface any                Resourcg Areas
                     archaeological resource on state lands without a
                     permit. It is also unlawful to sell, purchase, ex-                      As discussed in Section 3 of this report,
                     change, transport or receive any archeological re-             North Carolina's Coastal Area Management Act
                     source excavated or removed from state lands. [381             (CAMA) empowers the Coastal Resources Com-
                     Any person who knowingly and willfully violates                mission to designate areas of environmental con-
                     these provisions can be fined up to $2,000 and/or              cern (AECs). [421 Several general areas in the
                     imprisoned up to six months. [391 Also, civil penal-           ocean - such as public trust and estuarine waters
                     ties of up to $5,000 may be assessed by the Depart-            - have been established as AECs. However, the
                     ment of Administration in consultation with the                process allows for additional (and more specific)
                     Department of Cultural Resources. [401                         AECs to be nominated. [431 AEC nominations can
                              In formulating a comprehensive ocean                  be made for coastal complex natural areas, areas
                     policy for North Carolina, it is important to know             that sustain remnant species, unique geologic for-
                                                                                    mations, significant architectural resources and
                     whether development activities can be regulated                signifficant archaeological resources. [44] For ex-
                     by this act. The act's permit criteria are designed to         ample, Permuda Island, a former barrier island
                     control only the direct exploitation of a resource, to         located within Stump Sound in Onslow County,
                     ensure that divers and salvagers are not damaging              was successfully nominated and designated as an
                     or removing archaeological resources. However, it              AEC because of archaeological resources. [45] Once
                     also prohibits any unpermitted activity that dam-              an AEC is established, the Coastal Resources Com-
                     ages or alters these resources. It could be argued             mission can protect the resources of the area by
                     that the act applies to anyone damaging archaeo-               writing specific standards to control development.
                     logical resources, either directly through                     AEC nomination and designation is possible for
                     unpermitted salvage operations or indirectly                   special resource areas in the state's ocean.

                                                                                                 Ocean Resources Planning - Page 75










                      It should be noted, however, that archaeo-            Cultural Resources clarify the act's application to
             logical resources and fragile ecological areas in              activities (such as ocean mining) that may indi-
             North Carolina's ocean waters already fall within              rectly affect archaeological resources. At a mini-
             CAMA!s public trust and estuarine waters AECs.                 mum, the department should clarify the act to
             Consequently, proposed development activities                  more powerfully apply it in the CAMA review
             (such as ocean mining or the extraction of oil and             process.
             gas) in these areas would fall under CAMA!s re-
             view process and would need to meet those regula-              Footnotes
             tory standards before being allowed. Part of the
             review process circulates permit applications to
             other state and federal agencies, including those              [11 16 U.S.C.A. 1431.
             responsible for protecting critical environmental
             and archeological resources. Comments and/or                   [21 16 U.S.C.A. 1431(b).
             objections from these agencies are considered in
             the permit review process. However, as noted in                [31 16 U.S.C.A. 1433(b).
             Section 3 of this report, CAMA standards have a
             land or nearshore focus and were not developed                 [41 15 CFR 922.20.
             with ocean resources in mind.                                  [51 15 CFR 922.30.
             Recommendations                                                [61 15 CFR 922.33(a)(2)(i).

                      I. With regard to the Marine Protection,              [71 16 U.S.C.A. 1433(b).
             Research and Sanctuaries Act, the task force should
             review the secretary of commerce's site evaluation             [81 16 U.S.C.A. 1434(a).
             list for sites off North Carolina's coast. Further, it
             should determine if any sites lie in the state's               [91 16 U.S.C.A. 1434(b)(1).
             territorial waters. Sites that are eligible for active
             candidate status should be noted.                              [101 15 CFR 924.3.

                      For sites that are listed, the state should           [111 Christie, Donna. Coastal and Ocean Managrem
             monitor the designation process and participate in             ment Law. West Publishing Co., 1994.
             future management plans.                                       [121 16 U.S.C.A. 1436.
                      For sites that may involve state territorial
             waters, the Coastal Resources Commission should                [131 16 U.S.C.A. 1432(8).
             consider AEC designation and joint management
             plans with the secretary of the U.S. Department of             [141 16 U.S.C.A. 1437(d)(4).
             Commerce.                                                      [151 16 U.S.C.A. 143   .7(b).
                      II. With regard to CAMA, the task force
             should recommend that the Division of Coastal                  [16] Christie, Donna.
             Management and Coastal Resources Commission:                   [171 Information provided by Richard Lawrence,
                      A. review current standards for the public            Underwater Archaeological Unit, Division of Ar-
             trust and estuarine waters AECs to ascertain their             chives and History, Department of Cultural Re-
             adequacy in protecting important natural and ar-               sources, June 1994.
             chaeological resources from development in the
             state's ocean; and                                             [181 43 U.S.C.A. 2101.
                      B. conduct an inventory ofthe state's ocean           [191 43 U.S.C.A. 2105(a).
             waters to ascertain whether any areas should be
             nominated as a natural or cultural resource AEC.               [201 43 U.S.C.A. 2102(a).

                      III. With regard to North Carolina's Ar-              [211 55 CFR 50,120 (1990).
             chaeological Resources Protection Act, the task
             force should recommend that the Department of                  [22] The number of shipwrecks within the three-
                                                                            mile territorial waters is not precisely known, but


             Ocean Resources Planning - Page 76










                      this information is important since North Carolina
                      is only entitled to ownership rights over those
                      abandoned shipwrecks within its territorial wa-
                      ters.


                      [23] 43 U.S.C.A. 2105(b).

                      [241 56 CFR 60.

                      [251 7 NCAC 4R.0304.

                      [261 Information provided by Richard Lawrence,
                      Underwater Archaeological Unit, Division of Ar-
                      chives and History, Department of Cultural Re-
                      sources, June 1994.

                      [271 43 U.S.C.A. 2103.

                      [281  43 U.S.C.A. 2103(a)(2).

                      [291  43 U.S.C.A. 2103(b).

                      [301  43 U.S.C.A. 2104.

                      [311  GS 121-25.

                      [321  GS 70-11.

                      [331  GS 70-12(2).


                      [341  GS 70-13.


                      [351  GS 70-13(b).

                      [361  Id.

                      [371  GS 70-13(c).

                      [381  GS 70-15(a) and (b).

                      [391  GS 70-15(c).

                      [401  GS 70-16.

                      [411  This information will be updated in August
                      1994.


                      [421 GS 113A413.


                      [431 GS 113A-115.


                      [441 15 NCAC 7H.0500.

                      [451 15 NCAC 7H.0509(e).






                                                                                                        Ocean Resources Planning - Page 77




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                                       APPENDIX I
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                                                     APPENDIX I


                                          N.C. OCEAN RESOURCES TASK FORCE


                  Science

                  Dr. Larry Cahoon, Chair              Richard Lawrence
                  Department of Biological Sciences    Cultural Resources/Underwater Archaeology
                  UNC-Wilmington                       P.O. Box 58 -- Hwy. 421 S
                  Wilmington, NC 28403                 Kure Beach, NC 28449
                  910/395-3706                         910/458-9042
                  910/350-4066 (fax)                   910/458-4093 (fax)
                  ocean ecology

                  Dr. Len Pietrafesa                   Charles Gardner
                  Marine, Earth & Atmosph. Sciences    Division of Land Resources
                  N.C. State University                Archdale Building
                  Box 8208                             512 N. Salisbury Street
                  Raleigh, NC 27695-8208               Raleigh, NC 27604-1148
                  919/515-3717                         919/733-3833
                  919/515-7802 (fax)                   919/733-4407 (fax)
                  physical oceanography

                  Dr. Stan Riggs                       Roger Schecter
                  Department of Geology                Division of Coastal Management
                  East Carolina University             P.O. Box 27687
                  Greenville, NC 27858                 Raleigh, NC 27611-7687
                  919/757-6360                         919/733-2293
                  919/757-4391 (fax)                   919/733-1495 (fax)
                  geology

                  State Resource Agencies              Gail Miller
                                                       N.C. Aquarium at Ft. Fisher
                  Beth McGee                           P.O. Box 130
                  Div. of Envt. Mgmt.                  Kure Beach, NC 28449
                  Water Quality Section                910/458-8259
                  P.O. Box 29535                       910/458-6812 (fax)
                  Raleigh, NC 27626-0535               marine education
                  919/733-7015
                                                       Federal Resource Agencies
                  Fentress Munden
                  Division of Marine,Fisheries         Tony Giordano
                  P.O. Box 769                         Minerals Management Service
                  Morehead City, NC 28557              Atlantic OCS Region
                  919/726-7021                         381 Elden Street, MS 4030
                  919/726-0254 (fax)                   Herndon, VA 22070-4817
                                                       703/787-1283
                  Jack Wilson                          703/787-1284 (fax)
                  N.C. State Ports Authority
                  P.O. Box 9002                        Donna Wieting
                  Wilmington, NC 28402                 Nat. Oceanic & Atmosph. Admin.
                  910/343-6232                         Ecology & Env. Conservation
                  910/343-6237 (fax)                   Room 6222 -- Herbert Hoover Bldg-
                                                       14th & Constitution Ave., NW
                  Dr. Alex Chester                     Washington, DC 20230
                  National Marine Fisheries Service    202/482-5181
                  Beaufort Laboratory                  202/482-1156 (fax)
                  101 Pivers Island Road
                  Beaufort, NC 28516-9722
                  919/728-8724
                  919/728-8784 (fax)










                   George Matthews                      Bo Nowell
                   U.S. Coast Guard                     Atlantic Coast Conservation Assoc.
                   Environmental Protection Branch      212 Leckford Way
                   431 Crawford Street                  Cary, NC 27S11
                   Portsmouth, VA 23704-5004            919/733-3590
                   804/398-6638                         recreational.fishing
                   804/398-6503 (fax)
                                                        Todd Miller
                   Phillip Payonk                       N.C. Coastal Federation
                   Environmental Resources Branch       Hadnot Creek Farm
                   U.S. Army Corps of Engineers         3223-4 Hwy. 58
                   P.O. Box 1890                        Swansboro, NC 28584
                   Wilmington, NC 28402-1890            919/393-8185
                   910/251-4589                         environmental
                   910/251-4653 (fax)
                                                        Webb Fuller
                   Lynn Phillips                        Town Manager
                   Community Liaison                    P.O. Box 99
                   c/o Commanding General               Nags Head, NC 27959
                   Box 8003                             919/441-5508
                   MCAS Cherry Point, NC 28533-003      919/441-4680 (fax)
                   919/466-3041                         local government
                   919/466-3635 (fax)
                                                        Dave Weaver
                   Other                                New Hanover Co. Planning Dept.
                                                        414 Chestnut St., Room 101
                   Walter Clark                         Wilmington, NC 28401
                   NC Sea Grant                         910/341-7139
                   Box 8605, N.C. State Univ.           910/341-4035 (fax)
                   Raleigh, NC 27695                    local government
                   919/515-2454
                   919/515-7095 (fax)                   Staff
                   legal                                Kim Crawford
                   Melvin Shepard                       Division of Coastal Management
                   Southeastern Waterman's Assoc.       P.O. Box 27687
                   P.O. Box 0015                        Raleigh, NC 27611-7687
                   Sneads Ferry, NC 28460               919/733-2293
                   919/327-1231                         919/733-1495 (fax)
                   commercial fishing




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  1                        North Carolina Marine Science Council
  I                          Report on State-Federal Relations
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                         NORTH CAROLINA MARINE SCIENCE COUNCIL

                                 REPORT OF THE CommiTTEE ON STATE-FEDEnAL Rr:LATIONS



                                                        April 1991


                                                    CONCLUSION

                         At the September 1990 Marine Science Council meeting, the committee
                  on state-federal relations was instructed to investigate and to provide the council
                  with a report on whether North Carolina should actively support federal legislation
                  that would extend the jurisdiction of all coastal states over submerged lands and
                  waters from three geographical miles seaward of their coastal basellnes to twelve
                  nautical miles.1 The committee's opinion Is that seeking such an extension of
                  state jurisdiction would not, at this time, be In the best interests of the state. The
                  committee believes that the October 1990 amendments to the consistency
                  provisions of the federal Coastal Zone Management Act of 1972 provide the state
                  with a tool to protect its cltlzens@ interests in the conservation, management and
                  use of coastal lands, offshore waters and natural resources without the
                  disadvantages of extending state jurisdiction.

                                                       REPORT


                                                    A. Introduction

                         The committee's conclusion that North Carolina should not actively
                  support an extension of Its offshore jurisdiction from three to twelve miles Is
                  predicated upon an examination of what benefits North Carolina would receive as
                  a result of such an extension, and whether those benefits outweigh the burdens
                  that such an extension would Impose on the state. A number of coastal states
                  believe that, absent such an extension, they are being deprived of sources of
                  revenue that are rightly theirs, not the federal government's, and that they are
                  unable to adequately protect the legitimate Interests of their citizens, coastal


                  I On January 16, 1991, H.R. 536 was Introduced In the 102nd Congress. This
                  bill, If enacted, would extend all coastal states' jurisdiction over offshore lands
                  and waters seaward to twelve nautical miles. This would be accomplished by
                  amending the Submerged Lands Act of 1953, which is discussed In this report.
                  [The special circumstances of two states -- Texas and Florida -- already allow
                  them to exercise jurisdiction In excess of three miles over Gulf of Mexico lands
                  and waters.)









                     communities and coastal economies.               In the case of North Carolina, the
                     committee disagrees with this position.

                             In order to put the committee's conclusion in proper per            spective, It Is
                     necessary to understand the legal currents that have shaped the relationship of
                     coastal states and the federal government and to Identify the precise Interests, If
                     any, that the State of North. Carolina has in extending. its offshore jurisdiction.
                     Toward this end, the report first discusses the traditional three-mile territorial sea
                     and the coastal states' authority over this area. Second, the report examines the
                     impact of the CZMA on the coastal states' power -to influence activities of federal
                     agencies and permittees; -- both within and beyond the traditional three mile
                     territorial sea. Third, the impact of the 1988 extension of the United States
                     territorial sea upon state claims to additional offshore jurisdiction and upon the
                     states' authority under the CZMA is discussed. Fourth, the effect of the recent
                     1990 amendments to the CZMA on state authority Is explored. Finally, In light of
                     these developments, the question of what state interests, If any, would be
                     advanced by the extension of its offshore jurisdiction Is examined.


                              13. Federal and State Claims to the Traditional Territorial Sea

                            Early In our nation's history, the United States claimed a three-mile
                     territorial sea. Until recently, three miles was the distance that, as a matter of
                     International law, was generally accepted as the maximum width of a coastal
                     nation's territorial sea and jurisdiction.         Although the federal government
                     traditionally acted to protect our national security, commercial and navigation
                     Interests in these waters, until the 1940s the federal government had little Interest
                     in regulating the exploitation of the natural resources lying In or under these
                     coastal ocean waters. Indeed, until the 1940s, it was generally assumed that
                     these offshore natural resources belonged to, and were under the control of, the
                     adjacent coastal states.

                            In the 1940s the federal government asserted Its claim of ownership and
                     the right to control all natural resources seaward of the low-tide line of any
                     coastal state.     However, the only real resource of interest to the federal
                     government at that time was the potential oil and gas reserves of the continental
                     shelf.  The federal government had little interest in the conservation and
                     management of coastal fisheries, and was more than willing to leave their
                     management to the individual adjacent coastal states.

                            Understandably, the coastal states resisted the federal government's
                     claim. But, initially, the federal government prevailed. In a landmark decision,
                     United States v. California, 464 U.S. 312'(1948), the U.S. Supreme Court held
                     that the coastal states did not own or have primary authority over the natural
                     resources lying within three miles of the coastline of the United States. The
                     "Federal Government rather than the state has paramount rights In and power









                    over that belt, an 1ncident to which is full dominion over the resources of the soil
                    underlying that water area, including oil." (emphasis added).              The states,
                    however, did not give up in the face of this adverse decision. They continued to
                    assert their traditional claim to the natural resources of this three-mile belt,
                    especially the oil reserves and their potential revenues, through their
                    congressional delegations.

                           The states'efforts finally bore fruit in 1953. In that year, Congress passed
                    two related pieces of legislation: The Submerged Lands Act of 1953 and The
                    Outer Continental Shelf Lands Act of 1953 (OCSLA). The first of these In
                    essence turned over to the individual adjacent coastal states ownership of and
                    control over all natural resources within and under the waters comprising the
                    three-mile belt of coastal waters. This returned the coastal states' authority over
                    these resources to what the coastal states thought existed prior to the 1948
                    United States v. California decision. The second piece of legislation, however,
                    firmly asserted the authority of the federal government to the vast resources lying
                    on or under the outer continental shelf (OCS), that is everything seaward of the
                    three-mile belt that comprises the traditional territorial sea.

                           At that time, most offshore oil drilling was limited to shallow continental
                    shelf waters subject to state control. Under these circumstances, If oil or gas
                    existed, the coastal state received both the benefits and bore the burdens of
                    offshore oil and gas operations. To the extent conflicts developed between these
                    operations and other water uses, such as commercial fishing operations or
                    tourism, the people of the state, through their state representatives, could make
                    the choices they believed most appropriate for them.2


                                     C. Ther Coastal Zone Management Act of 1972

                                                       1. Background

                           As offshore oil and gas drilling technology Improved, It became feasible to
                    drill In the deeper OCS waters that lie beyond three miles from shore -- waters
                    under exclusive federal control.     Both coastal states with oil and gas reserves
                    within the three-mile belt and coastal states lacking any such reserves viewed the
                    development of OCS oil and gas reserves with alarm. The coastal states
                    believed that the OCSLA gave them little voice In OCS leasing and development
                    decisions, even though they and their citizens bore the brunt of the economic and
                    environmental burdens of these decisions. The financial burden of providing
                    services for onshore OCS support facilities was placed upon state and local
                    2 Even within the three-mile belt, the Submerged Lands Act of 1953 expressly
                    left final authority over matters of navigation, commerce, national defense and
                    international affairs in the hands of the federal government. 43 U.S.C. Sec.
                    1314(a). In addition, the act did not affect the continuing existence of the iederal
                    government's navigation servitude in this area.









                    governments. They did not receive any significant share of the revenues derived
                    from OCS activities, but they and their citizens suffered from the adverse
                    economic and environmental impacts of these onshore and offshore OCS
                    facilities and activities on thriving commercial fishing and tourism Industries.
                    Commercial fishers in particular worried about potential interferences with fishing
                    gear and fishing operations. In addition, after the 1969 Santa Barbara Channel
                    oil rig blowout, there was heightened state and local concern about the potentially
                    devastating economic and environmental effects of accidents associated with
                    offshore drilling operations.

                          . During the same period of time that these concerns were growing,
                    Congress recognized the need to encourage states to engage in comprehensive
                    coastal land and water use planning. The Coastal Zone Management Act of
                    1972 provided two incentives to coastal states to do such planning.           The act
                    provided participating coastal states with money for. program development,
                    through a system of federal grants, and Imposed a requirement that all federal
                    agency and permitted activities within a state's coastal zone must be "consistenr
                    with a participating state's federally approved coastal zone management
                    program. This "consistency" requirement was important because It meant that a
                    state's efforts to protect its constituents' coastal land and water interests through
                    comprehensive planning would not be lightly upset by activities of federal
                    agencies and federal permittees In the coastal zone. Absent "consistency,"
                    neither the federal agencies' nor federal permitted activities could go forward.
                    The act even gave coastal states some voice In OCS oil and gas drilling
                    operations because it also imposed a consistency requirement on OCS federal
                    permittees. However, despite the promise of the CZMA, state authorities hopes
                    of requiring federal agencies and permittees to act In conformity with the Interests
                    reflected in the state's approved coastal zone management plan were soon
                    dashed by the limiting language of the CZMA consistency provisions and the
                    even more limiting Interpretation given that language by the U.S. Supreme Court.

                                      2. P re-1 990 CZMA consistency provisions

                          Prior to 1990, the CZMA consistency provisions provided:

                          (c)(1) Each federal agency conducting or supporting activities
                          directly affecting the coastal zone shall conduct or support those
                          activities In a manner which is, to the maximum extent-practicable,
                          consistent with approved state management programs.

                          (c)(2) Any federal agency which shall undertake any development
                          project in the coastal zone of a state shall insure that the project Is,
                          to the maximum extent practicable, consistent with approved state
                          programs.








                           (c)(3)(A) ... any applicant for a required Federal license or permit to
                           conduct an activity affecting land or water uses in the coastal zone
                           of that state shall provide ... a certification that the proposed activity
                           complies with the state's approved state management program and
                           that such activity shall be conducted in a manner consistent with
                           the program. ...

                                (B) ... any person who submits... any plan for the exploration or
                           development of, or production from, any area which has been
                           leased under the Outer Continental Shelf Lands Act... shall...
                           attach... a certification that each activity... complies with... [the
                           state's] approved management plan and will be carried out in a
                           manner consistent with such program ... (emphasis added)

                    Both subparts (c)(3)(A) and (c)(3)(B) contain provisions allowing the Issuance of
                    any required federal permit or granting the necessary federal approval despite
                    the lack of consistency with an approved state management program if, on
                    appeal to the Secretary of Commerce, the Secretary finds that the "activity Is
                    consistent with the objectives of ... [the CZMA] or otherwise necessary in the
                    Interests of national security."

                             3. State Dissatisfaction With CZMA Consistency Provisions

                           A coastal state's ability to limit the actions of federal entities, such as the
                    United States Marine Corps, United States Air Force, or National Park Service,
                    was limited In part by the definition of "coastal zone." The statutory definition of
                    "coastal zone" expressly excluded "lands the use of which Is by law subject solely
                    to the discretion of or which is held in trust by the Federal Government, Its
                    officers or agents." Thus, development activities taking place on military bases,
                    national forests, national seashores or other federal property located physically In
                    the geographic area designated as the state's coastal zone did not have to be
                    conducted In a manner consistent with an approved state coastal zone
                    management program as long as the direct effects were confined to the federal
                    lands. Even If the effects of such activities spilled over Into what was defined as
                    a state's coastal zone, such activities needed to be consistent with the state's
                    approved management program only if two conditions were satisfied. The
                    activities must (1) "directly affect" (2) "land or water uses" In the coastal zone
                    Itself.

                           The key phrase "directly affect" arguably covers only those activities that
                    have a direct, identifiable impact. Using this Interpretation, only those aspects of
                    a federal project that can be shown to have such an impact are subject to the
                    consistency requirement. Other aspects of the project could not be reviewed, no
                    matter how otherwise inconsistent with the state's comprehensive attempt to
                    manage its coastal zone through a federally approved management plan. Even








                    more significant was the limitation that the direct effects be on land or water uses.
                    Adverse impacts upon a natural resource within the coastal zone were not
                    covered absent an impact on a protected land or water use. As a result of these
                    limitations on the consistency requirement, coastal states, such as North
                    Carolina, found some of their attempts to compel federal entities to conform with
                    the state management plan frustrated.

                           Seaward of the three-mile belt, subject to state jurisdiction, the states
                    faced similar frustrations. The U.S. Supreme Court in Secretary of the Interior v.
                    California, 464 U.S. 312 (1984), held that subpart (1) applied only to federal
                    activities conducted or supported on federal lands physically situated In a state's
                    coastal zone but excluded from the zone as formally defined by the CZMA.
                    Thus, subpart (1) did not include proposed federal lease sales of oil and gas
                    tracts located on the outer continental shelf, thereby foreclosing coastal states'
                    efforts to assure that, from the very beginning of the formulation of a federal plan
                    to develop OCS resources, the exploration for and development of OCS
                    resources would be consistent with the state's efforts to protect land and water
                    uses in its coastal zone. Furthermore, federal activity, other than oil and gas
                    leasing, involving the waters of the OCS seemed to be excluded from the
                    consistency requirements of subpart (c)(1) even If such activities might directly
                    affect land or water uses in the coastal zone.

                          Finally, subpart (c)(3)(B), the only provision that speaks directly to OCS oil
                    and gas activities, limited consistency to those OCS oil and gas exploration,
                    development, and production activities that affected coastal zone land and water
                    uses. The provision did not speak to effects upon natural resources within the
                    coastal zone.

                          In the 1980s* coastal states unsuccessfully attempted to have the CZMA
                    amended to specifically require consistency for those federal entity and permittee
                    activities that were exempt, or arguably exempt, from this consistency
                    requirement. But, In late 1988 the coastal states saw a new opportunity to
                    extend the size of their individual coastal zones and gamer for themselves the
                    benefits of natural resources within the enlarged coastal zone.


                           D. Extension of United States Territorial Sea and State Claims

                          On December 27, 1988, President Reagan, by presidential proclamation,
                    declared that the United States was formally extending its territorial sea to twelve
                    nautical miles. The coastal states responded to that proclamation with claims
                    that: (1) their offshore jurisdiction was also extended from three to twelve miles
                    and (2) the CZMA coastal zone now extended seaward twelve miles.
                          In light of the 1948 United States Supreme Court decision In United States
                    v. California, the first contention -- that an expansion of the territorial sea of the







                   United States necessarily expanded the jurisdiction of the individual coastal
                   states -- did not appear legally defensible. The only rights the individual coastal
                   states had to the submerged lands and waters of the traditional three-mile belt
                   were those given to them by congressional action through the Submerged Lands
                   Act of 1953, an act that set a specific geographical mileage distance for the area
                   subject to state ownership and jurisdiction. Recognizing the weakness of their
                   legal arguments, the congressional representatives of coastal states offered
                   legislation that would extend the authority of the individual coastal states seaward
                   to the outer limits of the new twelve-mile territorial sea of the United States.

                          The argument that the coastal zone of a state with an approved coastal
                   zone management program now extended to the outer limits of the new territorial
                   sea was legally plausible. The CZMA's definition of coastal zone stated that "the
                   zone... extends seaward to the outer limit of the United States territorial sea."
                   Thus, if the territorial sea expanded, the coastal zone necessarily expanded also.
                   The federal government's response to this argument was that the phrase
                   "territorial sea," as used in the CZMA, meant the territorial sea as it existed at the
                   time the act was passed by Congress, and that sea was a three mile one.


                                         E. The 1990 Amendments to the CZMA

                          When the CZMA came up for reauthorization, these heated debates and
                   the unaddressed concerns of the coastal states were at the center of
                   congressional consideration of amendments to the CZMA. In the closing hours
                   of the 101st Congress, major amendments to the CZMA were Included In the
                   Budget Reconciliation Act. These major amendments expand the scope of the
                   consistency requirement and clarify the CZMA definition of the seaward limit of a
                   state's coastal zone. The amended consistency provisions mandate:

                          (c)(1)(A) Each federal agency activity within or outside the coastal
                          zone that affects any land or water use or natural resource of the
                          coastal zone shall be carded out in a manner consistent to the
                          maximum extent practicable with the enforceable policies of
                          approved State management programs. A Federal agency activity
                          shall be sub'ect to this paragraph unless it is sub*ect to paraoraph
                          (2) or (3).

                   This amendment achieves a major goal of the coastal states. All federal agency
                   activities, including oil and gas lease sales, are subject to the CZMA consistency
                   requirement if the necessary relationship is shown. That nexus no longer
                   requires a "direct affect," but it is sufficient If the activity simply "affects." In
                   addition, activities that affect natural resources, not just land or water uses of the
                   coastal zone, are covered. This amendment greatly enhances the ability of a
                   coastal state to influence the design and implementation of federal activities that
                   adversely affect the legitimate coastal zone interests of a state and Its citizens.








                           In addition to the amendments to subparts (c)(1)(A), subparts (c)(3)(A) and
                    (B) were amended. Activities affecting natural resources of the coastal zone
                    were also included within their parameters.        Thus, the 1990 amendments
                    represent a significant legislative victory for coastal states.

                          The coastal states were less successful in having the, seaward limits of the
                    coastal zone extended to the outer limits of the new territorial sea.            The
                    amendments to the definition of "coastal zone" restrict the seaward limits to three
                    geographic miles. However, given the expanded nature of the consistency
                    requirement, the state will be able to require most federal activities that would
                    affect the three to twelve-mile belt of waters to be done In a manner that Is
                    consistent with the state's coastal zone management plan. It Is unlikely that a
                    federal activity of significance to most states could take place within that belt and
                    not "affect" a land or water use or natural resource of the state's coastal zone.

                    F. An Evaluation of Whether North Carolina Should Support An Extension
                              of Coastal States' Offshore Jurisdiction To Twelve Miles

                          North Carolina's position on the proposal to extend state jurisdiction to the
                    outer (twelve-mile) limits of the new United States territorial sea must be
                    evaluated against this background. The core questions are: (1) What would
                    North Carolina gain if its jurisdiction were extended to twelve nautical miles? (2)
                    What burdens would such an extension impose on the state? and (3) Would the
                    benefits outweigh the associated burdens?

                          Although a number of coastal states are advocating an extension of state
                    territorial waters, the committee's view is that North Carolina's situation diffdrs
                    substantially from the proponents of an extension and, in light of North Carolina's
                    situation, the state would gain little by such an action. In addition, any gains
                    would be significantly offset by the additional fiscal and regulatory burdens
                    associated with the management of this new water area.

                         A major force behind the proposal to extend coastal state offshore
                    jurisdiction is the prospect of acquiring ownership and   control over the natural
                    resources, and their associated revenues, that may be present In the three to
                    twelve-mile belt. For some states this Is Important; for North Carolina It Is not.

                         The most Important natural resources that might be found seaward of the
                    traditional three-mile belt offshore are oil and gas, hard minerals, and fisheries.
                    Coastal states such as California, Alabama, Mississippi, and Florida have such
                    resources located three to twelve miles off their coasts. Currently the revenues
                    derived from oil and gas production in that area go to the federal government, but
                    If the states' jurisdiction were extended, the revenues would pass to the states.3

                    3 Any rights that the coastal states may have to revenues derived from
                    development and exploitation of offshore resources depend on federal legislation








                    However, there is no evidence that oil and gas in any commercially significant
                    amount Is located under the continental shelf within twelve miles of North
                    Carolina's coastline. What oil and gas may exist, as evidenced by the Mobil Oil
                    project, lies much farther off our coast. Therefore, this particular benefit of an
                    extension is not available to North Carolina.

                           There is also little evidence of any significant mineral deposits within
                    twelve miles of North Carolina's coastline. There are phosphate deposits farther
                    offshore, but there Is no reason to believe that the offshore deposits that may
                    exist will be the subject of any significant mining operations, and little chance that
                    the state would derive any significant revenues from leasing such mining sites.

                           If such mining, on any limited scale, were ever proposed for areas of the
                    continental shelf lying within twelve miles of North Carolina's coastline, the state
                    could protect its coastal fisheries, tourism, water quality and similar activities
                    through the consistency requirements of the amended CZMA. It is unlikely that
                    any mining activity could take place in the three to twelve-mile belt that would not
                    affect a land or water use or natural resource of the state's CZMA coastal zone.
                    Thus, the state's regulatory concerns can be satisfied without making the three to
                    twelve-mile offshore area part of the state's territorial jurisdiction.

                           The third, and most significant, natural resource in the three to twelve-mile
                    belt Is the coastal fisheries. At present fisheries beyond the current'three-mlle
                    state belt are managed by the regional fishery councils, established by the
                    Magnuson Fishery Conservation and Management Act of 1976. Although there
                    may be dissatisfaction with some MFCMA regulations and a belief that, despite
                    the Intensive MFCMA management efforts, some of our offshore fisheries are In
                    trouble, there is no reason to believe that the state can manage these resources
                    more effectively. Furthermore, the state has neither the financial resources nor
                    the personnel to manage fisheries or regulate fishing operations In the three to
                    twelve-mile belt. Available Information suggests that the North Carolina Division
                    of Marine Fisheries' resources ar    9 already strained performing the division's
                    present duties. With little additional revenues to be derived from any extension of
                    North Carolina's offshore jurisdiction and the state's current fiscal crisis, the state
                    simply does not have the money to undertake the responsibility for managing and
                    regulating the coastal fisheries of the three to twelve-mile belt. Thus, gaining
                    control of these fisheries is a major factor in any decision to advocate extension
                    of North Carolina's offshore jurisdiction.

                           The Abandoned Shipwreck Act of 1987 gives coastal states title to most
                    shipwrecks! lying within offshore waters. For some states, perhaps the Gulf
                    states, an extension of their jurisdiction might give them control over a larger
                    number of wrecks, with either the power to protect such wrecks as historical sites

                    specifically granting them such rights. See footnote I for an example of such
                    legislation.








                    or the prospect of additional revenues from any treasure that might be recovered.
                    But few wrecks exist in the three to twelve-mile belt off the coast of North
                    Carolina. Thus, North Carolina would not derive any significant shipwreck
                    benefits from such an extension.

                           Extension of the state's jurisdiction would make the now area part of the
                    State of North Carolina, subject to all of North Carolina's criminal and civil laws.
                    Once again, the question must be asked whether North Carolina wishes to take
                    on the burdens associated with the enforcement of state laws In this area. The
                    committee does not see any benefit to the state in doing so.

                           There are other federal activities that take place beyond the outer limits of
                    the United States territorial sea that legitimately concern the state.           These
                    activities, such as ocean dumping and oil and gas exploration and development,
                    may adversely affect offshore fisheries outside the area subject to the state's
                    present jurisdiction, or pose threats to water quality. These activities deeply
                    concern the state because of the potential negative effects on commercial and
                    recreational fisheries, tourism, or the environment.         But extensi  on of state
                    jurisdiction to twelve miles will not give the state a stronger voice In the conduct
                    of these activities. Instead, the state's best tool for influencing these activities Is
                    through the effective use of the new CZMA consistency requirements.

                           Thus, the committee concludes that, absent some evidence that an
                    extension of North Carolina's offshore jurisdiction would significantly benefit the
                    state, the state should not actively support such legislation. Instead, North
                    Carolina's efforts should be directed toward identifying those offshore federal
                    activities that conflict with the state's coastal Interests, and determine. which
                    conflicts are not effectively addressed by the now CZMA consistency provisions.
                    The state could then support additional CZMA consistency provisions or other
                    federal laws to assure adequate state input into such federal activities.




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                                  State of North Carolina
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                                Executive Order Number 15
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                              JAMES B. HUNT, JR.
                                  GOVERNOR



                                                      F_XECUTIVE ORDER NUMBER 15




                                       WHEREAS, the General Assembly of North Carolina, in passing the

                             Coastal Area Management Act, has expressed its desire for a comprehensive,

                             coordinated management system for the protection and orderly development

                             of the coastal area; and,

                                       WHEREAS, the stated goals of the Coastal Area Management Act are:

                                            (1) To preserve and manage the natural ecological conditions

                                       of the estuarine system, the barr ier dune system, and the beaches,

                                       so as to safeguard and perpetuate their natural productivity and

                                       their biological, economic and aesthetic values;

                                            (2) To insure that the development or preservation of the

                                       land and water resources of the coastal area proceeds in a manner

                                       consistent with the capability of the land and water for develop-

                                       ment, use, or preservation based on ecological considerations;

                                            (3) To insure the orderly and balanced use and preservation

                                       of our coastal resources on behalf of the people of North Carolina

                                       and the nation;

                                            (4) To establish policies, guidelines and standards for:

                                                  (i) Protection, preservation, and conservation of

                                                      natural resources, including, but not limited to,

                                                      water use, scenic vistas, and fish and wildlife;

                                                      and management of transitional or intensely developed

                                                      areas and areas especially suited to intensive use or

                                                      development, as well as areas of significant natural

                                                      value;

                                                (ii)  The economic development of the coastal area,

                                                      including,but not limited to, conservation, location







                                                           and design of industries, port facilities,

                                                           commercial establishments and other developments;

                                                    (iii)  Recreation and tourist facilities and parklands;

                                                     (iv)  Transportation and circulation patterns for the

                                                           coastal area, including major thoroughfares, -

                                                           transportation routes, navigation channels'and

                                                           harbors, and other utilities and facilities;
                                                      W    Preservation and.enhancement of the\historic,

                                                           cultural and scientific aspects of the coastal area;

                                                     (vi)  Protection of present common law and statutory public

                                                           rights in the lands and waters of the coastal area;

                                                   (vii)   Any other purposes deemed necessary or appropriate to

                                                           effectuate the policy of The Coastal Area Management

                                                           Act; and

                                         WHEREAS, the Coastal Resources Commission shall be responsible for

                               the preparation, adoption, and amendment of the State guidelines for the

                               coastal area, which shall consist of statements of objectives, policies,

                               and standards to be followed in public and private use of land and water

                               areas within the coastal area; and

                                         WHEREAS, all local land use plans adopted pursuant to The Coastal

                               Area Management Act within the coastal area shall be consistent with the

                               State guidelines; and

                                         WHEREAS, any State land polidies governing the acquisition, use and

                               disposition of land by S    tate departments and agencies shall take account

                               of and be consistent with guidelines adopted under The Coastal Area

                               Management Act,-   insofar As lands within the coastal area are concerned; and

                                         WHEREAS, from and after the "permit changeover" date; all existing

                               regulatory permits within the coastal area shall be administered in

                               coordination and consultation with (but not subject to the veto of)              the

                               Coastal Resources Commission. No such existing permits within the

                               coastal area shall be issued, modified, renewed or terminated except

                               after consultation with the Commission;















                               NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

                               Section I. All State agencies shall take account of and be con-

                        sistent to the maximum extent possible with the coastal policies, guide-

                        lines and standards contained in the State guidelines, with the local

                        land use plans developed under the mandate of The Coastal Area Management

                        Act, and with the North Carolina Coastal Plan prepared under the Federal

                        Coastal Zone Management Act of 1972 in all regulatory programs, use

                        and disposition of state-owned lands, financial assistance for public

                        facilities, and encouragement and location of major public and private

                        growth-inducing facilities.

                               Section 2. The Secretary of Natural Resources and Community

                        Development and the Coastal Resources Commission shall ensure the oppor-

                        tunity for full participation by affected State agencies in the develop-

                        ment of policies and guidelines for the coastal area prior to their

                        adoption.

                               Section 3. All conflicts arising from the implementation of this

                        order within the Department of Natural Resources and Community Development

                        shall be resolved by the Secretary of that Department, and all conflicts

                        over consistency between the administering coastal management agency

                        (Department of Natural Resources and Community Development) and another

                        department of State government shall be resolved by the Governor.

                               Section 4. This Executive Order shall be effective immediately.

                               Done in Raleigh, North Carolina, this the 27th day of October,

                        1977.








                                                                GOVERNOR OF NORTH CAROLINA
                                                         <:; @VERNOR @OF


                        SEAL



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1                      North Carolina Coastal Management Program
                           Enforceable and Advisory Policies for
I                           OCRM Files and General Circulation
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                                            UNITED STATES DEP
                                         0                  ARTMENT OF COMMERCE
                                            National Oceanic and Atmospheric Administration
   A14ORNEy GFNERAL'S OFFIGE.               NATIONAL OCEAN SERVICE
                                            OFFICE OF OCEAN A14D COASTAL RESOURCE MANAGEMENT
        APR I !) 1989                       Wn%6ington, D.C.* 20235 APR 7 1989
         OCU. IS WAIT
                    North Carolina Coastal Management Program
                      Enforceable and Advisory Policiep for
                        OCRM Files and General C1rcu  lation



        Enforceable Policies

             Enforceable policies are those constitutional provisions,
        laws, regulations, local Land Use Plans (LUPs). and ordinances,'
        and judicial decisions by which states exert control over
        private and public land and water uses in the coastal zone (16
        USC 1454 (b)(4)). Enforceable policies "must be sufficiently
        comprehensive and specific to regulate land and water uses ... 11
        (15 CFR 923.40 (a)).

             Enforceable policies are those policies that a state or
        local government adopt "by legislation, rulemaking, memoranda of
        understanding, executive order or other legally sufficient means"
        (15 CFR 923.102 (b)(1)). However, in order for these policies to
        be enforceable they must beibinding on and applied equally to all
        private, local and state government entities.

             All policies found to b6.enforceable against private
        entities and state and local governments by a state and
        incorporated into a states coastal zone management program
        (CZMP) are the enforceable policies of a states CZMP and may be
        used for federal consistency reviews.


        Advisory Policies

             Advisory policies  are those policies that enhance a states
        coastal program or are  "in the nature of recommendations" (15
        CFR 930.58 (a)(4)). For example, broad general statements and
        legislative goals are not usually considered enforceable
        policies unless those statements are enforced equally to all
        entities without further clarification. other examples are
        general statements such as "tourism should be developed as the
        major economic sector in the coastal zone." Advisory policies
        only require that an entity "should" rather than "must" do
        something. Advisory, or enhancement, policies are-"binding for
        consistency purposes... only to the extent binding on the state
        and its agencies" (15 Section 923.3 (b)(3)(Comment (B)J, Federal
        Register, March 28, 1979, p. 18597). Thus, an advisory policy
        may be used for consistency purposes only to the extent that that
        policy has been applied to all private, local and state entities.




                                                                      L












          Nor-th Carolina Coastal Management Program Enforceable Policies,
          Authorities, Laws, and Requlations

               The following is a list of the enforceable policies,
          authorities, laws and regulations of the North Carolina Coastal
          Management Program (NCCMP) as defined in the 1978 NCCMP Federal
          Approval Findings and the 1978 NCCMP Program Document.

          Enforceable Policies of the NCCMP

               The following five categories of enforceable policies are
          described on pages 13 - 15 of the NCCMP Approval Findings signed
          September 1, 1978:

          I .  The goals set fort h in the North Carolina coastal Area
               Management Act (CAMA) Section 102(b).
          2.   State Guidelines for Local Planning set forth on pages  31
               86 of Appendix B of the 1978 NCCMP Program Document
               (substantive standards are set forth an pages 60 - 66 of the
               Program Document).
          3.   The 52 LUPs adopted under CAMA Part 2 and the State
               Guidelines for Local Planning.
          4.   The State Guidelines for Areas of Environmental Concern
               (AEC) set forth on pages 87 *- 127 of Appendix B of the
               Program Document.
          5.   The State Policies concerning Coastal Management in North
               Carolina set forth on pages 133 - 163 of the Program
               Document to the extent that they are prescribed by existing
               statutes and regulations other than the North Carolina Land
               Policy Act and regulations of the State Land Policy Council
               (see section on advisory policies below).

               In addition, the following North Carolina authorities, found
          on pages 209 and 210 of the NCCMP Program Document, are also
          enforceable policies of the NCCMP so long as they are "consistent
          to the maximum extent possible with the State Guidelines for
          Local Planning, set forth on pages 31 - 86 of Appendix B for uses
          outside any AEC, and also with the State Guidelines on AECs for
          Uses within AECs11 (NCCMP 1978 Approval Findings, pp. 12    13).

          1.   Water Quality Control Statutes
          2.   Water Use Act
          3.   Federal Water Resources Development Act
          4.   Floodway Regulations
          5. - Oil Pollution Control Act
          6.   Air Quality Statutes
          7.   Well construction Act
          S.   Regional Water Supply Planning Act
          9.   Regional Sewage Disposal Planning Act
          10.  Development and Improvement of Harbors
          11.  Dredge and Fill Act
          12.  Wetland Protection orders














        13. Fisheries Statutes
        14. Registration of Grants in Navigable Waters
        15. Dam Construction Act
        16. Mining Act
        17. Oil and Gas Conservation Act
        18. Sedimentation Pollution Control Act
        19. Acquisition and Management of State Parks
        20. Natural and Scenic Rivers Act
        21. NC Trails System Act
        22. Acquisition and Development of State Forests
        23. Investigation of Impact of New and Expanded Industry
        24. Easements to Fill
        25. Easements, Leases, Sale of State Land
        26. Acquisition of Land for Public Purposes
        27. Pesticide Application
        28. Public Utilities Act
        29. State Ports Authority
        30. Acquisition and Management of Historic Properties
        31. Ground Absorption sewage Disposal Act
        32. Solid Waste Disposal Act
        33. Sewer and Sanitation Act
        34. Highway Safety Act
        35. Streets and Highways in and around Municipalities
        36. Roadside Advertising
        37. Atlantic States Marine Fisheries Compact
        38. Executive Order #15, October 27, 1977 (p.210)


        North Carolina Advisory Polici es

            Any of the enforceable policies identified on pages 136
        163 of the NCCMP Program Document "set forth by the Land Policy
        Council and which are not shown to be implemented under some
        authority other than the Land Policy Act are considered to be
        advisory or enhancement policies" (1978 NCCMP Program Document,
        p. 136)


        Changes to the Enforceable Policies of the NCCMP

            Since the Program Document and Approval Findings were
        published there have been several changes to the NQCMP. These
        changes include: (1) Local Land Use Plans (LUPs) and subsequent
        updates, (2) the three planning elements required by Section 305
        (b) (7) , (8) , and (9) of the Coastal Zone Management Act (CZMA)
        (3) legislative changes to the North Carolina Coastal Area
        Management Act (CAMA) and the North Carolina Dredge and Fill Act,
        and (4) various changes to CAMA regulations 15 NCAC 7A - 7N.

        1.  Local Land Use Plans and Updates

            All LUPs and updates through 1984 have been incorporated











               into the NCCMP as Routine Program Implementations (RPIs).
               The most recent updates (after 1984) have been approved by
               the North Carolina Coastal Resources Commission but have not
               yet been incorporated into the NCCMP. The North Carolina
               Division of Coastal Management (DCM) submitted these updates
               in January 1988 but the submission was denied by OCRM due to
               insufficient information.


         2.    Three Planning Elements

               In 1978 all states with federally approved CZMPs were
               required to amend their programs by including (1) a
               Shorefront Access and Protection Planning Process, (2) an
               Energy Facility Siting Planning Process, and (3) a Shoreline-
               Erosion and Mitigation Planning Process. These three
               additional planning elements were incorporated as an
               amendment into the NCCMP in 1979. These elements contained
               the following new 6hforceable policies: 15 NCAC 7M Section
               .0100 et seq - Purpose and Authority, Section .0200 et seq
               Shoreline Erosion Policies, Section .0300 et seq -
               Shorefront. Access Policies, and Section .0400 et seq
               Coastal Energy Policies.

         3.    CAMA and Dredge & Fill Legislative Chanjgs

               In 1984, 21 changes to CAMA and 5 changes to the State
               Dredge-and Fill Law, enacted by the State legislature since
               1978, were incorporated into the NCCMP as an RPI. All
               changes were minor and included a new general permit
               authority, refined appeals process, deletion from the review
               process of minor permits, changes to councils memberships,
               and measures to improve the permitting process. Any
               legislative changes to these laws after 1984 have not been
               incorporated into the NCCMP.

         4.    CAMA Regulation Changes

               All changes to the CAMA regulations, 15 NCAC 7A through 7N,
               prior to February, 1987 have been incorporated into the
               NCCMP as RPIs. Changes were incorporated in 1979, February,
               1984 and another in March, 1987. Any CAMA regulations
               amended or promulgated after February, 1987 a.re not part of
               the federal'..ly approved NCCMP.

               Changes to any of the enforceable or advisory policies not
         noted in this s,ection are not incorporated into the NCCMP-




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 1                          Endangered Wildlife of North Carolina
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                        ENDANGERED WILDLIFEAF NORTH CAROLINA
                                              July 31, 1992

            The species listed below  have been'granted protection by the United States
            Fish and Wildife Service, under the Federal Endangered Species Act (16 U.S.C.
            1531-1543) and/or the North Carolina Wildlife Resources Commission, under the
            State Endangered Species Act (G.S. 113-331 to 113-337). Species proposed for
            federal or state listing are denoted as PE, PT or PSC. Proposed species are
            not currently protected under the federal or state endangered species acts.

                        SPECIES                                FEDERAL               N.C.
           E                                                   STATUS               STATUS
            MAMMALS

            Brazilian free-tailed bat
                 (Tadarida brasiliensis cynocephala)   .......... ..................  SC1
            Carolina northern flying squirrel
                 (Glaucomys sabrinus coloratus)    ............... E2  ................E
            Dismal Swamp southern shrew
                 (Sorex longirostris fisheri)   ................. T3  ................T
            Eastern Cougar
                 (Felis concolor cougar)   ......................E  ................. E
            Eastern wood rat
                 (Neotoma f. floridana)  ....................... ..................   T
                 (N. f. haemitoreia)  .......................... ..................   SC
                 (N. f. magister)  ............................. ..................   SC
            Gray Bat
                 (Myotis grisecens)   ...........................E  ................. E
            Indiana Bat
                 (Myotis sodalis)  ............................. E  ................. E
            Keen's bat
                 (Myotis keenji septentrionalis)   .............. ..................  SC
            Long-tailed shrew
                 (Sorex dispar blitchi)  ....................... ..................   SC
            Pigmy shrew
                 (Sorex hoyi winnemana)  ....................... ..................   Sc
            Rafinesque's big-eared bat
                 (Plecotus r. rafinesguii)  .................... ..................   SC
                 (P. r. macrotis)  ............................. ..................   SC
            Rock vole
                 (Microtus chrotorrhinus carolinensis)   ........ ..................  SC
            Small-footed bat
                 (Myotis 1. leibi)  ............................ ..................   SC
            Southeastern bat
                 (Myotis austroriparius )  ..................... ..................   SC
            Star-nosed mole
                 (Condylura cristata parva)  ................... ..................   SC
            Virginia big-eared bat
                 (Plecotus townsendii virginianus)    ............E ................. E











                          SP ECIES                             FEDERAL                N.C.
                                                               STATUS               STATUS
             MAMMALS

             Water shrew
                  (Sorex-Ralustris punctulatus)  ................ ..................  SC
             West Indian manatee
                  (Trichechus manatus)  ......................... E ................. E

             BIRDS

             American eastern peregrine falcon
                  (Falco-peregrinus anatum)   ....................E ................. E
             Artic peregrine falcon
                  (Falco peregrinus  tundrius)  ..................T ................. T
             Bachman's warbler
                  (Vermivora achmanii)   ........................ E ................. E
             Bachman's sparrow
                  (Aimophila aestivalis)  ....................... ..................  SC
             Bewick's wren
                  (Thryomanes bewickii)  ........................ ..................  E
             Black-capped chickadee
                  (Parus atricapillus)  ......................... ..................  SC
             Black skimmer
                  (Rhynochops niger)  ........................... ..................  SC
             Black vulture
                  (Coragyps atratus)  ........................... ..................  SC
             Brown pelican
                  (Pelecanus occidentalis)  ..................... ..................  SC
             Cooper's hawk
                  (Accipiter cooperij)  ...................... I.. .................. SC
             Glossy ibis
                  (Plegadis falcinellus)  ....................... ..................  SC
             Golden-crowned kinglet
                  (Requlqs satrapa) ............................ ..................   SC
             Gull-billed tern
                  (Gelochelidon nilotica aranea)  ............... ..................  T
             Ivory-billed woodpecker
                  (Campephilus principalis)   ....................E ................. E
             Kirtland's warbler
                  (Dendroica kirtlandii)   .......................E ................. E
             Little blue heron
                  (Egretta caerulea) ........................... ..................   SC
             Loggerhead shrike
                  (Lanius ludovicianus)  ........................ ..................  SC
             Northern saw-whet owl
                  (Aegolius acadicus)  .......................... ..................  SC
             Olive-sided flycatcher
                  (Contopus borealis)  .......................... ..................  SC
             Piping plover
                  (Charadrius melodus)  ......................... T ................. T











                          SPECIES                                 FEDERAL                N.C.
                                                                  STATUS               STATUS
            BIRDS

            Red-cockaded woodpecker
                  (Picoides borealis)   ..........................   E .................  E
            Roseate tern
                  (Sterna d. dougallij)   ........................   E .................  E
            Snowy egret
                  (Egretta thula)  .............................. ..................      SC
            Southeastern bald eagle
                  (Haliaeetus leucocephalus)    ...................  E .................  E
            Tricolor heron
                  (Egretta tricolor)   ........................... ..................     SC
            Wood  stork
                  (Mycteria americana)   .........................   E .................  E

            REPTILES

            American alligator
                  (Alligator mississippiensis)     ................. T(S/A)  ............ T
            Bog turtle
                  (Clemmys muhlenbergii)   ....................... ..................     T
            Carolina salt marsh snake
                  (Nerodia sipedon williamengelsi)    ............. ..................    SC
            Diamondback terrapin
                  (Malaclemys terrapin)   ........................ ..................     SC
            Eastern smooth green snake
                  (Opheodrys v. vernalis)   ...................... ..................     SC
            Eastern spiny softshell turtle
                  (Apalone s. spinifera)   ....................... ..................     SC
            Green (Atlantic) turtle
                  (Chelonia m. mydas)   ..........................   T .................. T
            Hawksbill (Atlantic) turtle
                  (Eretmochelys J. imbricata)     .................. E .................  E
            Kemp's (Atlantic) ridley turtle
                  (Lepidochelys kempii)   ........................   E .................  E
            Leatherback turtle
                  (Dermochelys coriacea)   .......................   E .................  E
            Loggerhead turtle
                  (Caretta caretta)   ............................   T .................  T
            Mimic glass lizard
                  (Ophisaurus mimicus)   ......................... ..................     SC
            Northern pine snake
                  (Pituophis M. melanoleucus)    .................. ..................    SC
            Outer Banks kingsnake
                  (Lampropeltis getulus sticticeps)    ............ ..................    SC
            Stripeneck musk turtle
                  (Sternotherus minor peltifer)    .......I......... ..................   SC










                           SPECIES                              FEDERAL               N.C.
                                                                STATUS              STATUS
              AMPHIBIANS

              Carolina crawfish frog
                   (Rana areolata capito) ....................... ..................   SC
              Crevice salamander
                   (Plethodon longicrMs) ........................ ..................   SC
              Dwarf salamander [silver morph]
                   (Eurycea guadridigitata) ..................... ..................   SC
              Eastern hellbender
                   (Crytobranchus a. alleganiensis)  ............. ..................  SC
              Eastern tiger salamander
                   (Ambystoma t. tigrinum) ...................... ..................   T
              Four-toed salamander
                   (Hemidactylium scutatum) ..................... ..................   SC
              Green salamander
                   (Aneides aeneus)  ............................. ..................  E
              Junaluska salamander
                   (Eurycea  junaluska) .......................... ..................  SC
              Longtail salamander
                   (Eurycga 1. longicauda) ...................... ..................   SC
              Mole salamander
                   (Ambysloma talpoideum) ....................... ..................   SC
              Mountain chorus frog
                   (PseudAcris brachyphona) ..................... ..................   SC
              Mudpuppy
                   (Necturus maculosus) ......................... ..................   SC
              Neuse River waterdog
                   (Necturus lewisi) ............................ ..................   SC
              River frog
                   (Rana beckscheri) ............................ ..................   SC
              Wehrle's salamander
                   (Plethodon wehrlei) ........................... ..................  T
              Weller's salamander
                   (Plethodon welleri) .......................... ..................   SC
              Zigzag salamander
                   (Plethodon dorsali@) ......................... ..................   SC

              FISHES

              American brook lamprey
                   (Lampetra appendix) .......................... ..................   T
              Atlantic sturgeon
                   (Acipenser oxyrhynchus) ...................... ..................   SC
              Banded sculpin
                   (Cottus carolinae) ........................... ..................   T
              Bigeye jumprock
                   (Moxostoma ariommum) ......................... ..................   SC
              Blotchside logperch
                   (Percina burtoni) ............................ ..................   E
              Bluefin killifish
                   (Lucania goodej)  ............................. ..................  SC










                        SPECIES                                FEDERAL                N.C.
                                                               STATUS               STATUS
            FISHES

            Blueside darter
                 (Etheostoma jessiae)  ......................... ..................    SC
            Bridle shiner
                 (Notropis bifrenatus)  ........................ ..................    SC
            Broadtail madtom
                 (Noturus n. spj   ............................. ..................    SC
            Cape Fear chub
                 (Hybopsis sp_-)(Lum, CFe) ..................... ..................    SC.
            Cape Fear shiner
                 (Notropis mekistocholas)  .....................  E  ................. E
            Carolina darter
                 (Etheostoma collis)  .......................... ..................    SC
            Carolina madtom
                 (Noturus furiosus)  ........................... ..................    SC
            Carolina pygmy sunfish
                 (Elassona boehlkei)  .......................... ..................    T
            Cutlips minnow
                 (Exoglossum maxillinqua)  ..................... ..................    E
            Dusky darter
                 (Percina sciera)  ............................. ..................    E
            Freshwater drum
                 (Aplodinotus grunniens)  ...................... ..................    T
            Highfin carpsucker
                 (Carpiodes velifer)  .......................... ..................    SC
            Kanawha minnow
                 (Phenacobjus teretulus)  ...................... ..................    SC
            Lake sturgeon
                 (Acipenser fulvescens)  ....................... ..................    SC
            Least brook lamprey
                 (Lampetra aepyptera)  .......................... ..................   SC
            Least killifish
                 (Heterandria forLnosa) ......................... ..................   SC
            Logperch
                 (Percina caprodes)  ........................... ..................    T
            Longear sunfish
                 (Lepomis megalotis)  .......................... ..................    SC
            Longhead darter
                 (Percina macrocephala)  ....................... ..................    SC
            Mooneye
                 (Hiodon tergj@us)  ............................ ..................    SC
            Mountain madtom
                 (Noturus eleutherus)  ......................... ..................    SC
            Olive darter
                 (Percina sQuamata)  ........................... ..................    SC
            Orangefin madtom
                 (Noturus gilberti)  ........................... ..................    E
            Paddlefish
                 (Polyodon spatula)  ........................... ...................   E










                          SPECIES                              FEDERAL               N.C.
                                                               STATUS               STATUS
             FISHES

             Pinewoods darter
                  (Etheostoma mariae)  .......................... ..................  SC
             River carpsucker
                  (Carpiodes carpio)  ........................... ..................  SC
             Riverweed darter
                  (Etheostoma podostemone)  ..................... ..................  SC
             River redhorse
                  (Moxostoma carinatum)  ........................ ..................  SC
             Rosyface chub
                  (Hybopsis rubifrons)  ......................... ..................  T
             Rosyside dace
                  (Clinostomus funduloides ssp.)  ............... ..................  SC
             Rustyside sucker
                  (Moxostoma hamiltoni)  .... ................... ..................  E
             Sandhills chub
                  (Semotilus lumbee)  ........................... ..................  SC
             Sharphead darter
                  (Etheostoma acuticeps)  ....................... ..................  T
             Sharpnose darter
                  (Percina oxyrhyncha)  ......................... ..................  SC
             Shortnose sturgeon
                  (Acipenser brevirostrum)  ..................... E ................. E
             Spotfin chub
                  (Hybopsis monacha)  ........................... T ................. T
             Stonecat
                  (Noturus flavus) ............................. ..   ................E
             Striped shiner
                  (Notropis chrysocephalus)  .................... ..................  T
             Tennessee snubnose darter
                  (Etheostoma simoterum)  ....................... ..................  SC
             Turquoise darter
                  (Etheostoma inscriptum)  ...................... ..................  SC
             Waccamaw darter
                  (Etheostoma perlongum)  ....................... ..................  T
             Waccamaw killifish
                  (Fundulus waccamensis)  ....................... ..................  SC
             Waccamaw silverside
                  (Menidia extensa)  ............................ T ................. T
             Wounded darter
                  (Etheostoma maculatum vulneratqm)  ............ ..................  SC











                        SP ECIES                              FEDERAL               N.C.
                                                             STATUS               STATUS
           MOLLUSKS

           Alabama rainbow
                (Villosa nebulosa)  ........................... ..................  SC
           Alewife floater
                (Anodonta implicata)  ......................... ..................  SC
           Appalachian elktoe
                (Alasmidonta ravenliana)  ..................... ..................  E
           Appalachian gloss
                (Zonitoides patuloides)  ...................... ..................  SC
           Atlantic pigtoe
                (Fusconaia masoni)  ........................... ..................  T
           Bidentate dome
                (Ventridens coeaxis)  ......................... ..................  SC
           Big-tooth covert      .  .
               @(Mesodon jonesianus)  ......................... ..................  T
           Blackwater ancylid
                (Ferrissia hendersoni)  ....................... ..................  SC
           Blue-foot lancetooth
                (Haplotrema kendeighi)  ....................... ..................  SC
           Brook floater
                (Alasmidonta varicosa)  ....................... ................... T
           Cape Fear spike
                (ElliRtio marsupiobesa)  ...................... ................... T
           Cape Fear threetooth
                (Triodopsis soelneri)  ........................ ..................  T
           Carolina creekshell
                (Villosa vaughanianus)  ....................... ..................  SC
           Carolina heelsplitter
                (Lasmigona decorata)  .................... o.... .................. E
           Cinnamon covert
                (Mesodon wheatleVi)  ........................... .................. T
           Dark glyph
                (Glyphyalinia junaluskana)  ................... ..................  SC
           Dwarf proud globe
                (Mesodon clarki)  ................o............ ..................  SC
           Dwarf threetooth
                (Triodopsis fulciden)  ........................ ..................  SC
           Dwarf wedge mussel
                (Alasmidonta heterodon)  ...................... E  .................E
           E. lampmussel
                (Lampsilis radiata)  .......................... ..................  SC
           E. pondmussel
                (Ligumia nasuta)  ............................. ..................  SC
           Engraved covert
                (Mesodon orestes)  ............................ ..................  T
           Fragile glyph
                (Glyphyalinia clinqmani)  ..................... ..................  E
           Fringed coil
                (Helicodiscus fimbriatus)  .................... .. o ............... SC











                           SP ECIES                                FEDERAL                N.C
                                                                   STATUS               STATUS
              MOLLUSKS

              Glossy supercoil
                   (Paravitrea placentula)   ...................... ..................    sC
              Great Smoky slitmouth
                   (Stenotrema,depilatum)   ....................... ..................    Sc
              Green floater
                   (Lasmigona subviridus)   ....................... ..................    E
              High mountain supercoil
                   (Paravitrea andrewsae)   ....................... ..................    SC
              Honey glyph
                   (Glyphyalinia vanattai)   ...................... ..................    SCI
              Knotty elimia
                   (Elimia interrupta)   .............................................    E
              Lamellate supercoil
                   (Paravitrea lamellidens)   ..................... ...................   SC
              Little-wing pearly mussel
                   (Pegias fabula)  ..............................   E   .................E
              Magnificent rams-horn
                   (Planorbella magnifica)   ...................... ..................    E
              Marsh sprite
                   (Micromenetus alabamensis)   ................... ..................    E
              Mirey Ridge supercoil
                   (Paravitrea clappi)   ........................... ..................   Sc
              Mountain creekshell
                   (Villosa vanuxemensis)   ....................... ...........    .......T
              Noonday snail
                   (Mesodon clarki nantahala)   ...................  T  ................. T
              Neuse spike
                   (Elliptio judithae)   .......................... ..................    E
              Open supercoil
                   (Paravitrea umbilicaris)   ..................... ..................    SC
              Pink glyph
                   (Glyphyalinia pentadelphia)    .................. ...................  SC
              Pistolgrip
                   (Tritigonia verrucosa)   ....................... ..................    E
              Pod lance
                   (Elliptio folliculata)   ....................... ...................   SC
              Queen crater
                   (Mesodon chilhoweensis)   ...................... ..................    SC
              Ramp Cove supercoil
                   (Paravitrea lacteodens)   ....................... ..................   SC
              Roan supercoil
                   (Paravitrea.varidens)   ........................ ..................    T
              Roanoke slabshell
                   (Elliptio roanokensis)   ....................... ..................    SC
              Savannah lilliput
                   (Toxolasma pullus)   ........................... ..................    T
              Saw-tooth disc
                   (Discus bryanti)  ............................. ..................     SC










                           SPECIES                                FEDERAL                 N.C.
                                                                  STATUS                STATUS
            MOLLUSKS

            Sculpted supercoil
                  (Paravitrea ternaria)   ........................ ..................     T
            Seep mudalia
                  (Leptoxis dilatata)   .......................... ..................     E
            Slippershell mussel
                  (Alasmidonta viridis)   ........................ ..................     E
            Smoky Mountain c-overt
                  (Mesodon ferrissi)  ........................... ..................      T
            Smooth mudalia
                  (Legtoxis virgata)  ........................... ..................      E
            Spike
                  (Elliptio dilatata)   .......................... ..................     SC
            Spiral coil
                  (Helicodiscus bonamicus)   ..................... ..................     SC
            Squawfoot
                  (Strophitus  iun ulatus) ....................... ..................     T
            Tar River Spiny mussel
                  (Elliptio fCanthyrial @teinstansana)     ......... E  ................. E
            Tennessee heelsplitter
                  (Lasmigona holstonia)   ........................ ..................     E
            Tennessee pigtoe
                  (Fusconaia barnesiana)   ....................... ..................     E
            Tidewater mucket
                  (LaLnpsilis ochracea)  ......................... ..................     SC
            Triangle floater
                  (Ala smidonta undulata)  ....................... ..................     T
            velvet covert
                  (Mesodon subpalliatus)   ....................... ..................     SC
            Waccamaw ambersnail
                  (Catinella waccamawensis)   .................... ..................     T
            Waccamaw amnicola
                  (Amnicola ï¿½_p.) ............................... ..................      SC
            Waccamaw fatmucket
                  (Lampsilis fullerkati)   ....................... ..................     T
            Waccamaw lampmussel
                  (Lampsilis crocata)   .......................... ..................     SC
            Waccamaw siltsnail
                  (Cincinnatia ï¿½p.)  ............................ ..................      SC
            Waccamaw spike
                  (Elliptio waccamawensis)   ..................... ..................     T
            Wavy-rayed lampmussel
                  (Lampsilis fasciola)   ......................... ............    I ...... SC
            Yellow lampmussel
                  (Lampsilis cariosa)   ........................... ..................    T
            Yellow lance
                  (Elliptio lanceolata)   ........... . ............. ..................  T
            1SC - State listed as special concern.
            2E    - Listed federally and/or state as endangered.
            3T    - Listed federally and/or state as threatened.




  I
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  I                                     APPENDIX 6
  1                Draft OCS Policy for Incorporation into 7M .0400 - 10/28/91
  1                         Section .0400 - Coastal Energy Policies
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                         DRAFT OCS POLICY FOR INCORPORATION INTO 7M.0400 - 10/28/91

                                         SECTION .0400 - COASTAL E NERGY POLICIES


                  .0401 DECLARATION OF GENERAL POLICY
                  It is hereby declared that the general welfare and public interest require that a reliable sources of energy be
                  made available to the citizens of North Carolina. It is further declared that the development of energy
                  facilities a d resources within the state and in offshore waters can serve important regional and national
                  interests. However, unwise development of energy facilities or resources can conflict with the recognized and
                  equally important public interest that rests in conserving and protecting the valuable land and water resources
                  of the state and nation, particularly coastal lands and waters. 77herefore, in order to balance the public
                  benefits attached to necessary energy development against the need to protect valuable coastal resources, the
                  planning of future land uses., and the exercise of regulatory authority, and determinations of consistena with
                  the North Carolina Coastal Management Pronam shall assure that the development of energy facilities and
                  resources shall avoid significant adverse impact upon vital physieal coastal resources,-pgblic trust areasand
                  public access rights.

                  -Ext)loration for and development of offshore and Outer Continental Shelf (OCS) epergy resources provides
                  the potential for sienificant imnacts on coastal resources. 71e Federal Coastal Zone Management Act of 1972,
                  as amended, requires that federal oil and gas leasing actions of the U.S. Department of the Interior be
                  consistent to the maximum extent practicable with the enforceable pglicies of the federally-approved North
                  Carolina Coastal Management Program. Plans submitted to the Dppartment of the Interior for exploration,
                  development, or production in an OCS-lease area that include actions that mAy affect any land or water use
                  or natural resource of the coastal area shall be consistent-with enforceable policies. for the DuMses of such
                  required consistency, enforceable policies applicable to OCS activities include all the-provisions and volicies
                  of this Rule as well as, ny other applicable- federally-approved components of the North Carolina Coastal
                  Manageme t Proeram.- 'All permit -applications, plans, and assessments related to exploration or development
                  of OCS resources must contain adequate, information to allow in-depth analysis of the consistency of all
                  proposed activities with these rulo and policies.

                  00402 DEFINITIONS
                  (a) "Assessment" is an analysis which fully discusses the environmental, economic and social consequences
                  of a proposed project. At a minimum, the assessment 9hou-1d gUU include the following information:
                          (1)      a full discussion of the preferred sites for those elements of the project
                                   #ffecting the land or water uses oL-natural resources of the coastal    area.
                                   Da       In all cases where the preferred site is located within an
                                            AEC or on a barrier island, the applicant shall identify
                                            alternative sites considered and present a full discussion [in
                                            terms of (2) through (8) of this Subsection] of the reasons
                                            why the chosen location was deemed more suitable than
                                            another feasible alternate site.
                                   (b)      If the preferred site is not located within an AEC or on a
                                            barrier island, the applicant shall present reasonable
                                            evidence to support the proposed location over a feasible
                                            alternate site.
                                   0c       In those cases where an applicant chooses a site previously
                                            identified by the state as suitable for such development and
                                            the site is outside an AEC or not on a barrier island,
                                            alternative site considerations will not be required as part
                                            of this assessment procedure.







                            (2)      a full discussion of the economic impacts, both positive and negative, of the
                                     proposed project;
                                     Jal      77his discussion should focus on economic impacts to the
                                              public, seeier-end-al" not on be deemed to inelud
                                              matters that are purely internal to the corporate operation
                                              of the applicant. -,-an" No proprietary or confidential
                                              economic data will be required.
                                              7bis discussion shall include analysis of likely adverse
                                              impacts upon the ability of any governmental unit to
                                              furnish necessary services or facilities as well as other
                                              secondary impacts of significance.
                            (3)      a full discussion of potential. limke"r-Mb" adverse impacts on estuarine
                                     or coastal resources and of sMific actions proposed to mitigate any adverse
                                     impacts based on industry e3tperienee;
                            (4)      a full discussion of potential likely or probable adverse impacts on existing
                                     industry er prebabi      and Potential @nreasenable limitations on the
                                     availability of natural resources, particularly water, for future industrial
                                     developmeny.  based 11 i -dustry e*-l--.-*.---.r-vv--,
                            (5)      a full discussion of potential liket"r probable significant adverse impacts
                                     on recreational uses and scenic, archaeological and historic resources, based
                                     en industry            .;
                            (6)      -a full discussion of potential fiWy-er-ffebeWe risks of danger to human life
                                     or property;
                            (7)      other specific data necessary for the various state and federal agencies and
                                     commissions with jurisdiction to evaluate the consistency of the proposed
                                     project with relevant standards and guidelines;
                            (8)      a spectic demonstration that the proposed project is consistent with relevant
                                     local land use plans and with guidelines governing land uses in AECs;
                   If appropriate environmental documents are prepared and reviewed under the provisions of the National
                   Environmental Policy Act (NEPA) and/or the North Carolina Environmental Policy Act (NCEPA), this review
                   will satisfy this definition of "assessment" if all issues listed in this Subsection are addressed and these
                   documents are submitted in sufficient time to be used to review consistengy determinations and subsequent
                   state permit applications for the project.
                    (b) "Major energy facilities" are those energy facilities which because of their size, magnitude or and scope
                   of impacts, have the potential to significantly affect the land or water uses or natural resources of the coastal
                   area. the eeastal zone. For purposes of this definition, major energy facilities shall include, but are not
                   necessarily limited to, the following:
                            (1)      any facility capable of refining oil;
                            (2)      any terminals (and associated facilities) capable of handling, processing, or
                                     storing liquid propane gas, liquid natural gas, or synthetic natural gas;
                            (3)      any oil or gas storage facility that is capable of storing 15 million gallons
                                     or more on a single site;
                            (4)      electric generating facilities 300 MGW or larger;
                            (5)      thermal energy generation;
                            (6)      major pipelines 12 inches or more in diameter that carry crude petroleum,
                                     natural gas, liquid natural gas, liquid propane gas, or synthetic gas@:
                            L71      structures, including drillships and floating platforms and structures
                                     relocated from other states or countries, located in offshore waters for the
                                     purposes of exploration for, or development or production of, oil or natural
                                     9ASK
                                     on-shore support or staging-- facilities related to exploration for, o
                                     develovinent or production of, pil or natural gas.


(c) "Offshore waters" - definition referencing Submerged Lands Act and Outer Cont. Shelf Lands Act.


.0403 POLICY STATEMENTS
(a) The placement and operations of major energy facilities in or affecting any land or water use or natural
resource of the North Carolina coastal area shall be done in a manner that allows for protection of the 
environment and local and regional socia-economic goals. The placement and operation of such facilities shall
be consistent with established state standards and regulations and shall comply with local land use plans and 
with guidelines for land uses in AECs.
(b) Proposals, plans, and permit applications for major energy facilities to be located in or 
affecting any land or water use or natural resource of the North Carolina coastal area shall, 
include a full disclosure of all costs and benefits associated with the project. This 
disclosure shall be prepared at the earliest feasible stage in planning for the project and shall be in the form
of an impact assessment.
(c) Local governments shall not unreasonably restrict the development of necessary energy facilities;
however, they shall be encouranged to develop siting measures that will minimize impacts to local 
resources and to identify potential sites suitable for energy facilities.
(d)
Energy facilities that do not require shorefront access shall be sited inland of 
shoreline areas. In instances when shoreline portions of the coastal area are necessary 
locations, shoreline siting will be acceptable only if it can be demonstrated that coastal resources and 
public trust waters will be adequately protected, the public's right to access and passage will not be 
unreasonably restricted, and all reasonable mitigating measures have been taken to minimize impacts to AECs.
(e) The scenic and visual qualities of coastal areas shall be considered and protected as important public 
resources. Energy facility development shall be sited and designed to protect views to and along the ocean,
sounds, and scenic coastal areas, to minimize the alteration of natural land forms, and to be visually 
compatible with the character of surrounding areas.
(f) All major energy facilities in or affecting the land or water uses or natural resources of the coastal are
shall be sited and operated so as to be consistent with the following criteria to the maximim extent practicable.
	(1)	Risks of environmental harm to fish spawning areas shall be assessed and
		minimized.
	(2) 	For facilities requiring an Oil Spill Contingency Plan (Plan) pursuant to 30
		CFR 250.42 or other Federal or State regulations, the Plan must be 
		approved by the State prior to permit or consistency decisions. The Plan
		shall completely assess the risks of spills, evaluate possible trajectories, and
		enumerate response and mitigation measures employing the best available 
		technology to be followed in the even of a spill. The Plan must adequately
		demonstrate that the potential for oil spills and ensuing damage to coastal
		resources has been minimized.
	(3)	Dredging, spoil disposal and construction of related structures that can be
		reasonably expected to affect the land or water uses or natural resources of 
		the coastal area shall be minimized, and any unavoidable actions of this sort 
		shall minimize damage to the marine environment.
	(4)	Damage to or interference with existing or traditional uses, such as fishing,
		navigation, and access to public trust areas, and areas with high biological
		and/or recreational value shall be avoided to the extent that such damage or
		interference could be reasonably expected to signigicantly affect the land or 
		water uses or natural resources of the coastal area.
	(5) 	Placement of structures in geologically unstable areas such as unstable
		sediments and active faults shall be avoided to the extent that damage to 
		such structures resulting from geological phenomena could be reasonably
		expected to significanly affect the land or water uses or natural resources








                                       of the coastal area.
                             01        Wildlife destruction or relocation shall be assessed and minimized to the
                                       extent that such destruction or_ relocation could be reasonably expected to
                                       significantly affect the land or water uses or nawml resources of the coastal
                                       area.
                             m         Adverse impacts on sMies identified as --threatened or endangered o
                                       Federal or State lists shall be &voided.
                             f_8)      No energy facilities will be sited in components of the North Carolina
                                       Coastal Reserveo in State-owned Parks, recreation areas or histodc sites: in
                                       Federal or State wildlife refugees. or in National Parks or Seashores.
                             09        No energy facilities will be sited in areas that pose a threat to the integtity
                                       of the facility, such as occanftont areas with high historic erosion mtes.
                                       areas having a histoKy of overwash or inlet formation, and areas in the
                                       vicinity of existing inlets.
                             LUO       Offshore reefs, rock outcrops #nd live bottom areas shall be avoided to the
                                       extent that impacts on such areas could be reasonably expected to
                                       significantly affect the land or water uses or natuml resources of the coastal
                                       area.
                             (11)      In the siting of energy facilities and related structures, the following areas
                                       shall be avoided to the maximpm extent ppssible:
                                       Oa      areas of high biological significance, including sea turtle
                                               nestiniz beaches. freshwater and saltwater wetlands,
                                               primaKy nursery areas, submerged aquatic vegetation beds,
                                               shellfish beds, anadrqmous fish svawning and nurseKy
                                               areas, and colonial bird nesting coloniese
                                       M       maior tmcts of maritime forest and other important natural
                                               areas as identified by ffie North Carolina Natural Heritag
                                               Programo
                                       j Uc    crossings of streams. rivers, and lakes except for existin
                                               readily accessible corridors,
                                       f4l     designated National Historic Landmarks and sites listed in
                                               or determined eligible for the National Register of Historig
                                               -Places-,
                                       Lel     anchorage areas and congested port areas:
                                               artificial reefs, ship3Krecks, and submerged archaeological
                                               resources:
                                               clump sites:
                                               areas of large dunes-or well-developed frontal dune
                                               systems:
                                       01      heavily develomd and heavily used recreation areas,
                                       Where impacts on these areas cAnnot be avoided, damage shall be mitizated
                                       to the maximum extent practicable, and affected areas shall be restored to
                                       their original functions as soon as possible.
                            JU2        Construction of energy facilities shall occur only during periods of lowest
                                       biological vulnerability. Nesting and spawning periods shall be avoided.
                                       If facilities located in the coastal area are abandoned, habitat of value pgual
                                       to or greater than that existing prior to construction shall be restored as soon
                                       as practicable following abandogment. For abandoned facilities outside th
                                       coastal area, habitat in the area shall be restored to its preconstruction state
                                       and functions as soon as practicable if the abandonment of the structures
                                       could be reasonably expected to affect the land or water uses or natural
                                       resources of the coastal area.




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                         North Carolina Emergency Operations Plan
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                                 Oil Spill Contingency Plan
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                                        Annex N
                               oil Spill Contingency Plan


               PURPOSE AND OVERVIEW

               A.   Purpose

                    This plan identifies actions to be taken by State and
                    local government agencies and private organizations
                    within North Carolina when a spill of oil or petroleum
                    products threatens the inland, coastal and offshore
                    waters of the State.     The purpose of the plan is to
                    minimize the risk posed by the spill to the public, its
                    property and to the environment.       This plan provides
                    coordination for a multi-organizational response and
                    recovery effort in order to.minimize the impact of oil
                    spills on the waters of North Carolina.

               B.   Interface with Federal Jurisdiction

                    Under Federal law [Clean Water Act as well as the
                    Comprehensive Environmental Response Compensation and
                    Liability Act, (CERCLA) J, Federal agencies respond to oil
                    and hazardous material spills in accordance with a
                    National Contingency Plan which establishes a structure
                    for the exercise of Federal jurisdiction over spills
                    involving waters within the United States.        Generally
                    speaking, the Environmental Protection Agency (E.P.A.)
                    has lead responsibility for spills into fresh water while
                    the United States Coast Guard (U.S.C.G.) is in charge of
                    spills in the coastal and marine waters.      Section 1300
                    of the EPA/Federal Region IV Oil and Hazardous Substance
                    Pollution Contingency Plan delineates geographical areas
                    of responsibility. In some areas the U.S.C.G. has
                    responsibility.     In other areas the United States
                    Environmental Protection Agency has responsibility.
                    These various areas of responsibility are shown on
                    Appendix 7 to this annex.

                    This annex is the North Carolina State Oil spill Plan
                    which integrates oil spill emergency response by North
                    Carolina State and local government agencies into the
                    framework established by the National Contingency Plan.
                    This Annex is a part of the North Carolina Emergency
                    Operations Plan (NCEOP) which guides response by North
                    Carolina state and local government agencies to a variety
                    of emergencies.    Leadership under that plan rests with
                    the State Director of Emergency Management who as the
                    State Emergency Response Team (SERT) Leader has access to
                    all resources of State government during an emergency.
                    The roles, responsibilities and procedures of State
                    agencies identified elsewhere in the North Carolina

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                        Emergency operations Plan (NCEOP) may also be applicable
                        to this annex.     These are therefore incorporated by
                        reference into this annex.


                  C.    State Interests

                        The waters of the State comprise an essential resource
                        for human existence as well as for marine, aquatic and
                        wildlife.   Oil spills can pose significant threats to
                        human life and health, other organisms and to the economy
                        of the State.      Although the Federal government has
                                                                           Federal
                        primary legal  jurisdiction for response under
                        environmental laws, the State of North Carolina also  has
                        substantial interest in protecting the waters of      the
                        State   because of their      economic,   aesthetic   and
                        life-supporting qualities. This Annex provides for    the
                        mobilization and coordination of a network of State   and
                        local resources as needed in order to protect the public,
                        to respond to State interests and to support the Federal
                        efforts in environmental protection, spill containment
                        and cleanup.

                  SITUATION.AND ASSUMPTIONS

                  A.    SITUATION

                        1.   Accidents or emergencies involving oil can occur
                             anywhere within the State as well as within the
                             near and offshore waters of the State.

                        2.   Oil spills can adversely impact the citizens of the
                             State due to:

                             a.  Risks of fire and explosion.
                             b.  Threats to human health.
                             c.  Damage to surface and ground water quality.
                             d.  Harm to marine and aquatic ecosystems.
                             e.  Damage to property.
                             f.  Adverse economic impacts due to losses to
                                 tourism, fisheries, and natural resources.

                        3.   North   Carolina    has   an    affirmative     legal
                             responsibility to protect the State's natural
                             resources.

                        4.   The state has legal jurisdiction over activities
                             within the waters lying three miles off the state's
                             coast, and substantial interest in those activities
                             beyond three miles that could affect the Statels


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                           oil spill contingency Plan


                       coastal waters and land areas.           Under the
                       authority of the Federal Coastal Zone     Management
                       Act of 1972, as amended, the state views  activities
                       requiring Federal permits to assure consistency
                       with State coastal management policies.

                 5.    North Carolina is located adjacent to major
                       shipping lanes in the Atlantic Ocean serving as
                       corridors for approximately 70% of the ocean-going
                       oil and petroleum products on the east coast of the
                       United States.


                 6.    There will be increased risk to the State's natural
                       environment caused by natural gas and oil explora-
                       tion on the outer continental shelf. These risks
                       will substantially escalate if production wells are
                       drilled.

                 7.    Because oil and petroleum products are used
                       throughout the State, a significant risk exists for
                       transportation accidents as well as for spills at
                       fixed sites.

                 8.    Past experience has shown that oil spills can have
                       effects which range from the highly localized to
                       those which involve hundreds of miles of coastal
                       area.


                 9.    North Carolina has highly sensitive areas and
                       species of organisms which could be adversely
                       affected by a major oil spill.

            B.   ASSUMPTIONS

                 1.    The product spilled is most likely to be diesel
                       fuel or heating oil, with a maximum probable
                       release of 1,000,000 gallons or less, and a typical
                       release of 10,000 gallons.    However, a credible
                       worst case scenario would involve a spill of up to
                       15 million gallons of crude oil in the coastal
                       waters of the State.

                 2.    Responsible parties will comply with the State's
                       regulations regarding accidental releases of oil
                       and other hazardous.materials.





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                                 oil spill contingency Plan


                       3.   The party responsible     for the    release 'will
                            voluntarily utilize all resources available to it
                            in its response to the release, under the
                            supervision of the Federal OSC or, if necessary,
                            the North Carolina Division of Environmental
                            Management.

                       4.   Circumstances may arise in which there is not an
                            identified responsible party to assume containment
                            and/or clean-up operations, and prompt exercise of
                            Federal control, with State and local support, may
                            be necessary.

                       5.   An accidental release could occur during severe
                            weather, making control and clean up operations
                            dangerous and/or ineffective.

                       6.   Initial efforts at containment and control of
                            spilled material may fail or be unfeasible and the
                            response activity may be limited to clean-up of the
                            material and restoration of the affected human and
                            natural resources.

                       7.   State, local and volunteer personnel who have been
                            properly equipped and trained in hazardous material
                            emergency response will be to utilized by the SERT
                            Leader in the implementation of this plan.

                       8.   There will be substantial interest by the public
                            and the press in the circumstances surrounding a
                            major incident and the emergency response and
                            recovery efforts.

                       9.   Timely deployment of a network of State, local and
                            volunteer personnel, equipment and other resources
                            may be required in order to protect sensitive
                            environmental areas of the State.

                      10.   A major oil spill into the waters of the State is
                            very likely to necessitate a long-term recovery
                            program to restore the well-being of the impacted
                            area's economy.

                      11.   The State will institute appropriate actions to
                            recover from the responsible party compensation for
                            the damages done to the State's natural resources
                            and for the economic losses suffered by the State
                            and its citizens.


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                               Oil Spill Contingency Plan


         111. CONCEPT OF OPERATIONS


               A.    GENERAL

                      I.  A multi -organi zationa 1 oil spill response network
                          will be deployed when oil poses a threat to the
                          public health and welfare on the environment.
                          Included in this network are resources of the
                          Federal,    State,   and   local    governments,     the*
                          responsible party, oil spill response contractors
                          and    cooperatives,   and   volunteer    groups     and
                          individuals.

                     2.   Federal statutes provide that the U.S. Coast       Guard
                          and/or the U.S. Environmental Protection Agency be
                          given immediate notification of accidental releases
                          of oil and other hazardous substances.            If a
                          discharge, or substantial threat of a discharge of
                          oil or hazardous substance from a vessel, offshore
                          facility, or onshore facility is of such a size or
                          nature as to be a substantial threat to the public
                          health or welfare or the environment (including,
                          but not limited to, fish, shellfish, wildlife,
                          other natural resources, and the public and private
                          beaches and shorelines of the United States) the
                          President shall direct all Federal, State, and
                          private actions to remove the discharge or to
                          mitigate or prevent the threat of the discharge.

                     3.   When the responsible party, the U.S.C.G. or the
                          Federal EPA respond to an accidental release within
                          or potentially affecting the waters of North
                          Carolina, the State will assume a position of
                          support to this response. In this capacity, State
                          agencies and other involved organizations will,
                          through the Division of Emergency Management,
                          prepare to undertake and/or will undertake actions
                          described in section IV.B of this Annex (organiza-
                          tion and Assignment of Responsibilities - State)

                     4.   The State will consider the Federal authorities
                          and/or the party responsible for the release as the
                          first tier of response to an accidental release.
                          However, for an accidental release in which the
                          party responsible is unable or unwilling to respond
                          effectively, and the Federal government does not
                          have authority to coordinate the response or cannot
                          respond in a timely manner, the North Carolina

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                            Division of @ Environmental Management will upon
                            determination that funding is available coordinate
                            with the Federal On-Scene coordinator and commit
                            resources    consistent    with   approved     response
                            strategies and priorities.

                            If the Division of Environmental Management is the
                            first agency notified of a spill, the Division
                            shall notify the Division of Emergency Management
                            of the incident, and provide timely updated
                            information regarding the status of the release.
                            The   Division    of   Emergency    Management      will
                            immediately notify the appropriate U.S. Coast Guard
                            Marine Safety office (USCG-MSO*] or the Regional
                            Environment Protection Agency Office (EPA).         (See
                            Appendix 7 to this Annex. Following notification,
                            the Division of Emergency Management will prepare
                            to undertake the tasks listed in Section IV.B.2 of
                            this Annex.

                      5.    The State will provide coordination of all measures
                            taken on the land with respect to public safety and
                            protection.

                      6.    The priorities for use of State resources in         the
                            response shall be in the following order:

                            (a)  First: Protection of the health and safety of
                                 the general public.
                            (b)  Second:     Protection of emergency worker
                                 safety.
                            (c)  Third: Protection of valuable environmental,
                                 cultural and archaeological resources.
                            (d)  Fourth: Protection of business and commerce.

                      7.    If initial efforts to contain and control the
                            release or spill are unsuccessful, the State's
                            efforts will be principally          directed toward
                            supporting rapid and safe clean-up of the spilled
                            material and the restoration of damaged natural and
                            man-made resources to their normal State.

                      8.    only properly equipped and trained personnel will
                            be permitted to engage in containment, control or
                            clean-up activities, whether such personnel are
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                      private contractors, cooperatives or volunteer
                      organizations.

                      If   circumstances require,    appropriate    and/or
                      specialized training may be given on-scene.

                  9.  Through the Division of Emergency Management Area
                      Coordinators, the State will provide guidance and
                      assistance to local government and volunteer
                      agencies engaged in the response activities.

                 10.  Damage assessments will be conducted by Federal,
                      State and local personnel within their areas of
                      expertise or responsibility to determine the value
                      of property and resources damaged or destroyed by
                      the effects of an oil spill.

                 11.  The State will seek compensation for expenses and
                      damages from the party responsible for the spill,
                      and all such expenses and damages will be
                      documented from the outset of the incident.

                 12.  There will be a recovery program to assist affected
                      individuals, families, and communities as outlined
                      in Annex J to Part Il of this plan.



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                       N.C. Marine Science Council's 1991 Report
I                                  Debris in the Sea
I                          Summary and Recommendations
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            SUMMARY AND RECOMMENDATIONS





                                              Summary
                                              Litter and debris are visible environmental problems for all
                                              residents of North Carolina, not just the coastal population.
                                              Solving this problem will require everyone - individual
                                              citizens as well as government agencies, businesses and
                                              volunteer organizations - to work cooperatively toward a
                                              solution. The perception of the problem is widely shared.
                                              Energy, desire, leadership and resources are required to
                                              devise workable solutions.

                                              Conclusions
                                                  9  The problem of litter and debris in the marine environ-
                                                     ment is substantial and growing. The problem has
                                                     aesthetic, econon-dc, public health and environmental
                                                     dimensions. To date, efforts to address the issue have
                                                     made only a small dent in the problem.

                                                  e  Although many laws and policies deal with litter and
                                                     debris disposal, most either do not clearly distinguish
                                                     authority or responsibility or they are not supported
                                                     with sufficient resources for implementation. Important
                                                     opportunities exist for new legislation, most notably
                                                     legislation creating incentives for reducing the waste
                                                     stream and increasing waste recovery, such as container
                                                     laws currently in place in other states.

                                                  *  Public and private initiatives are paramount to solving
                                                     the litter and debris problem. The public must perceive
                                                     this as an important issue. Business and industry - in



                                                                                                             37









                    SUMMARY AND RECOMMENDATIONS




                          particular those that significantly contribute to the
                          litter and debris problem - must be convinced that it is
                          economically smart and a civic responsibility to help
                          reduce and manage the waste stream.

                          Information disseminated about litter and debris must
                          be based on science. For example, problems have
                          arisen from the erroneous belief that photodegradability
                          is a "solution," when in many cases it may actually ex-
                          acerbate the litter and debris problem. Public support
                          and government actions must be based on accurate
                          information for management strategies to be truly
                          effective.

                    Recommendations
                    1. North Carolina Should Adopt the Following Policy:
                    It shall be the policy of the state of North Carolina to elimi-
                    nate all lit-ter and debris from the waters of North Carolina
                    and to cooperate with other public and private entities in the
                    elimination of litter and debris from the marine environment.

                    2. Consolidation and Coordination of Responsibility and
                    Authority
                    Public sector responsibilities for litter and debris should be
                    consolidated as much as possible, ideally in a single office or
                    agency. In North Carolina, the Department of Environment,
                    Health and Natural Resources may be the most appropriate
                    agency for the regulatory portions of this consolidation and
                    coordination. Consolidation should occur not only in the
                    areas of law, policy and enforcement, but also in the area of
                    education.
                       Whether any consolidation of responsibility and authority
                    occurs, the division of labor among agencies and organiza-
                    tions should be clarified. Enforcement personnel in different
                    state agencies, for example, should be empowered - and
                    instructed - to enforce all marine litter and debris regula-
                    tions, or a very clear and specific division of labor should be
                    developed. This effort should include informing the public
                    which agency should be contacted to assist in detecting and
                    reporting violations. All efforts should receive additional
                    resources, and enforcement should be a priority.




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                                                       SUMMARY AND RECOMMENDATIONS





                                      3. Cooperation Among Different Levels of Government
                                      Since the litter and debris problem crosses local, state, na-
                                      tional and international boundaries, cooperation among all
                                      levels of government is required. North Carolina should
                                      consider legislation adopting the principles of the MARPOL
                                      Protocol, which the United States has signed. Like NIissis-
                                      sippi, North Carolina could adopt legislation that authorizes
                                      the appropriate state regulatory body to adopt compatible
                                      provisions of the treaty into state law and policy. Since the
                                      litter problem is statewide, some form of revenue sharing
                                      between state and local governments may also be appropriate.
                                      To avoid confusion, local governments should also ensure
                                      that municipal and county regulations and programs are as
                                      consistent and compatible as possible.

                                      4. Incentives for Reducing Litter and Debris
                                      Economic incentives for reducing the waste stream should be
                                      given serious consideration. Container laws, the most suc-
                                      cessful option currently used by other states, create incentives
                                      for reusing potential litter and debris. A study of public
                                      policy options for potential legislative action, such as tax
                                      incentives for recycling activities and the production of biode-
                                      gradable materials, should be initiated by the governor in
                                      cooperation with the General Assembly.

                                      S. Management of Litter and Debris
                                      Management of litter and debris should be guided more
                                      strongly by public policy. For example, all water-related
                                      development activities permitted by the state, such- as marinas
                                      and coastal development projects, including construction
                                      sites, should be required to have adequate facilities for litter
                                      and debris disposal.

                                      6. Penalties for Violators
                                      Penalties for violating laws regulating the disposal of litter
                                      and debris should be raised to a level that would provide a
                                      significant deterrent. This includes costs both to individuals
                                      for violating litter laws as well as to businesses for violating
                                      waste stream management laws. Penalties should be consis-
                                      tent across jurisdictions.





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                   SUMMARY AND RECOMMENDATIONS






                   7. Education and Information
                   The problem of litter and debris in the marine environment
                   should be stressed to students in grades K-12 and in post-
                   secondary schools through the regular curriculum and to the
                   public at large through adult education. Responsibility for
                   education and infon-nation should be consolidated as much as
                   possible in an entity that can oversee the coordination of the
                   educational effort. Because of its vast influence, the media
                   should be included in this far-reaching effort.

                   8. Resources
                   Three sources of financial support for public education and
                   for management of, waste should be strengthened:
                       * Direct appropriations from state and federal govern-
                     ment, as appropriate, for activities necessary to address
                     portions of the solid waste problem that affect public
                     health and safety and the environment;
                       9  Mandated user fees on certain activities in the marine
                          environment to be used in education and management
                          efforts; and
                       *  Contributions by individuals, organizations and indus-
                          try, either in the form of direct contributions to particu-
                          lar activities or in the form of an endowment fund, to
                          assist public and private efforts in solid waste manage-
                          ment.
                       Even in the absence of new resources, existing public and
                   private resources should be redirected toward this problem.

                   9. A North Carolina Conf ere   nce on Litter and Debris in the
                   Marine Environment
                   The N.C. Marine Science Council should sponsor or co-spon-
                   sor a conference on litter and debris in the marine environ-
                   ment. The conference should involve both public and private
                   sector participants and sponsors and should address all
                   dimensions of the litter and debris problem. The conference
                   should draw upon state and national expertise and experience
                   and should provide an educational forum for North Carolina
                   residents and policy-makers.







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