North Carolina's Ocean Stewardship Area: A Management Study Ocean Policy Committee

[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

Ocean Resources Planning - Page 7

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Ocean Resources Planning - Page a
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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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I N.C. Ocean Resources Task Force
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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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I APPENDIX 2
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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I APPENDIX 3
State of North Carolina
I
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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I .APPENDIX 4
1 North Carolina Coastal Management Program
Enforceable and Advisory Policies for
I OCRM Files and General Circulation
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-A

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.

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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I APPENDIX 5
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 �_p.) ............................... .................. SC
Waccamaw fatmucket
(Lampsilis fullerkati) ....................... .................. T
Waccamaw lampmussel
(Lampsilis crocata) .......................... .................. SC
Waccamaw siltsnail
(Cincinnatia �p.) ............................ .................. 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.

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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.

.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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I APPENDIX 7

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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Annex N
Oil Spill Contingency Plan

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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Annex N
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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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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Oil Spill contingency Plan

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
from Federal, State, or local agencies or from

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Oil spill contingency Plan

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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I APPENDIX 8
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

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.

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.

V-0

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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