Tag Archives: Coastal Development

The Highway and the Sea

Highway 12  extends from mainland Dare County south  across Oregon Inlet (by way of the Bonner Bridge) to Hatteras Island.    The road travels  through Cape Hatteras National Seashore and Pea Island National Wildlife Refuse before reaching the Village of  Rodanthe at the southern end of the island.    At  several points, the island narrows to a ribbon between the Atlantic Ocean and brackish ponds in the wildlife refuge.

Highway 12 to Hatteras aerial

Photo credit: County of Dare / Foter.com / CC BY-NC-SA

For decades, the state  has cleared, relocated, rebuilt and repalred storm-damaged sections of  the Hatteras Island highway. On March  19  2013, N.C. Gov. Pat McCrory issued an executive order  again declaring  a state of emergency  for  N.C. Highway 12 to allow use of state and federal emergency funds to repair Hurricane Sandy damage on Hatteras.  Repair costs for the most recent damage have been estimated at $8-10 million.

In 2010, the state  made  a commitment  to perpetually maintain Highway 12 as the main transportation link to Hatteras Island — without  assurance that it is technically possible and without  knowing the cost.  The commitment was  sealed   when the N.C. Department of Transportation (NCDOT)  decided  to replace the aging Bonner Bridge over Oregon Inlet  with a new bridge built in a parallel location.  Bonner Bridge carries Highway 12 from mainland Dare County across Oregon Inlet to Hatteras Island;  unless Highway 12  continues south on Hatteras Island,  traffic coming off the new  Bonner Bridge  will have nowhere to go.

In making the Bonner Bridge replacement decision, NCDOT looked at a number of other alternatives — including a sound-side bridge that would connect to Hatteras Island at the island’s midpoint (rather than bringing traffic directly south from Nags Head) and expanded ferry service in place of a bridge.   NCDOT cited a number of reasons for choosing  a new Oregon Inlet bridge and maintenance of Highway 12 as the preferred  transportation access to Hatteras Island —     including  the high cost of a sound-side bridge.  But it is also clear that  Dare County citizens  and local government officials   pushed  for continued road access from mainland Dare County to  Hatteras Island.

As  the state was deciding to go all in to  continue the historic road  access to Hatteras Island,  a combination of storm damage and shoreline erosion was  making it increasingly difficult — and expensive — to  keep  Highway 12 open.   In 2003, Hurricane Isabel breached Hatteras Island – creating a  small  inlet connecting the Atlantic Ocean to the waters of Pamlico Sound behind the island.  NCDOT  filled the Hurricane Isabel breach, but when the area breached again in  2011  NCDOT  built  a temporary bridge over the new inlet.   The storm that reopened the Isabel breach, Hurricane Irene, also opened  a second breach  to the south. The most recent damage occurred in October of 2012 when Hurricane Sandy overwashed the temporary bridge and  caused the highway to buckle and overwash  in  several places south of the temporary bridge.

Hwy 12_Oct 2012_Mirlo Beach

Highway 12 at Mirlo Beach (October 2012). Photo: The Virginian Pilot.

The Cost

In the last 25 years, the state has spent over $23 million (in state and federal funds) to repair the most threatened sections of Highway 12  on Hatteras Island.  That figure does not include  the  additional $8-10 million  needed to repair the October 2012 Hurricane Sandy damage.   (WRAL News  has compiled  a  25-year history of repair costs for the Hatteras Island sections of Highway 12  from information provided by NCDOT.)   The raw numbers don’t tell the whole story – the highway has experienced catastrophic  storm damage at an accelerating pace in the last few years.  Of the   $23 million spent since 1987, 75% was spent  in the last 10 years.

5-year costs in thousands of dollars.

The chart  shows Highway 12 repair costs for each five-year period since 1987. It does not include the costs of repairing the 2012 Hurricane Sandy damage; the most conservative estimate of Sandy repair costs ($8 million) would  bring  total  repair costs  since August of 2011 to more than $20 million. The costs also don’t include  long-term work needed to  keep  Highway 12 open  as the Hatteras Island shoreline continues to change. NCDOT has identified a number of erosion “hotspots” and possible breach locations  along the 12.5 mile section of highway between the Bonner Bridge landing and Rodanthe. The options under study include permanently  bridging the most threatened sections of the highway within its existing right of way. That approach could  put  bridged sections of Highway 12  hundreds of feet  offshore  within a few years as the island  itself continues to erode and migrate toward the mainland.

Replacing Bonner Bridge has been estimated to cost between $265 and $315 million (in 2006 dollars).  When you add the cost of  addressing the erosion hotspots and areas at risk of breaching  on Highway 12   south of  the  Bonner Bridge landing , the total cost of  maintaining road access from the Dare County mainland  to  Rodanthe  may be as high as $1.5 billion (also in 2006 dollars). The actual costs are unknown;  the final NCDOT/ Federal Highway Administration decision documents  for the Bonner Bridge  replacement  project  left  specific decisions about how to stabilize Highway 12 on Hatteras Island to be made in the future.

Right now, it all has the feel of decision-making avoided. Inertia will carry the state  along a path of  maintaining a highway in the sea  unless state leaders look again at the most basic questions:

1. What is the purpose of Highway 12 on Hatteras Island  — to provide safe access on and off the island or to maintain a  road from  mainland Dare County to Hatteras Island? The two are not  the same.

2. Can the state — at any reasonable cost — maintain   Highway 12 between Oregon Inlet and Rodanthe as the Hatteras Island shoreline continues to erode and migrate toward the mainland?

3. Is there another way to provide transportation access on and off the island that can more easily adapt as the Hatteras Island shoreline changes?

The NCDOT decision  to replace the Bonner Bridge in a  parallel location  and permanently maintain Highway 12 on Hatteras Island has been appealed by two wildlife organizations. That  appeal is pending in federal district court.  NCDOT’s evaluation of options for maintaining Highway 12 on Hatteras Island is ongoing.

 

 

Postcards from the Coast: Is that a septic tank on the beach?

The owner of [oceanfront] land loses title to such portions as are so worn or washed away or encroached upon by the water. Thus, the lots of the plaintiff were gradually worn away by the churning of the ocean on the shore and thereby lost. Its title was divested by  “the sledge hammering seas, the inscrutable tides of God.”  North Carolina Supreme Court (quoting Moby Dick) in Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach (1970).

A lot in Raleigh or Asheville (or most points in between)  can be expected to stay  within the lot lines on a survey, but oceanfront property  has at least one movable boundary – the Atlantic Ocean.  If beach erosion causes the mean high water line to move toward land,   the  property boundary moves   with it.    Any area  seaward of  the new   mean high water line becomes state-owned “public trust”   land.    The idea of the sovereign   — in this case the state — holding all lands under navigable waters in trust for the people  came to the American colonies   from  British law and has been adopted in some form by every coastal state.  North Carolina public trust law   recognizes   a public right to use the ocean waters and the beach strand — roughly the area between the daily low tide line and the dunes — for  swimming, navigation, fishing and recreation. As the Atlantic Ocean reshapes the North Carolina coast,   the   moving  boundary may cause  private property  to  become public trust property. There are areas of the North Carolina coast where entire rows of undeveloped lots  have disappeared into the Atlantic Ocean to become public trust lands.

Nags Head Beach Houses 2009

South Nags Head  2009 (Photo: The Virginian Pilot)

The last two sections of  Senate Bill 151 (Coastal Policy Reform Act of 2013) address the problem of damaged structures on the public beach or in public trust waters. Since flood insurance only covers damage by flooding, an oceanfront property owner has an incentive  to allow  an uninhabitable erosion-damaged  house to stay on the beach (or in the water) until it finally collapses during a storm.  In the meantime, the damaged structure  can be both an obstruction and a safety hazard. Senate Bill 151  responds to a  2012 N.C. Court of Appeals decision,  Town of Nags Head v. Cherry, Inc.,  by  giving  coastal  towns and counties  clear authority  to take legal action to remove  nuisance structures from  public trust areas.

The decision in Town of Nags Head v. Cherry, Inc. came out  of  the town’s efforts  to remove  an  oceanfront house  under a  local nuisance ordinance specifically written to deal with storm and erosion-damaged structures.  The Nags Head  ordinance requires  removal of a damaged structure  if  it creates a likelihood of injury to people or property  or if the  structure (whatever its condition)  is located in a public trust area or on public land. The house owned by Cherry, Inc.  had some structural damage, but  the more significant problem was that erosion had left the  house seaward of the high water line.  Utility connections had been cut because waves washed under the structure.  The septic tank and drain lines had been damaged and were  partially exposed on the beach, leaving the house with no sanitation system.

The Court of Appeals concluded that the Town of Nags Head did not provide enough evidence  that the house created a risk of  injury to people or property  and sent that  issue back to the  trial court for hearing. Having set aside the injury issue, the court then held that  the town could not use the nuisance ordinance to order  removal  of the house just because it obstructed the  public trust area.  The court  held  that only the State of North Carolina (through the Attorney General) can enforce public trust rights.

The most basic problem with the  Cherry, Inc.  decision is  that the court lost sight of the fact that an oceanfront  structure exists in an environment very different from a  house in Raleigh or Asheville.  The court interpreted the  Nags Head  decision to order removal rather than repair of the  house   as evidence that the town acted only because the  house obstructed  the public trust area  — and not because  the house posed an actual risk to people or property.   As the court said:   ” If the Dwelling was a nuisance because of its location in a public trust area, then the only way  to abate the nuisance would be removal of the Dwelling, while conditions such as damage to the Dwelling could likely be repaired.”

By separating the location of the  house  from the  assessment of  risk to people and property, the court overlooked the fact that a damaged structure in the surf zone of the Atlantic Ocean may not be repairable in   the usual  sense.  A house buffeted by daily tides and vulnerable to every storm is at risk of  collapse  — endangering beachgoers and leaving dangerous debris —   even if the house itself is intact. The  Cherry, Inc. house  had also lost its septic system.  Replacing a septic system  on a lot overwashed by the  tides creates  a source of contamination in an area used by the public for swimming and sunbathing. Given continuing erosion and the power of the tides, replacement of the septic system  would likely also be futile.

As a practical matter,  the Cherry, Inc. decision  would  require  the Attorney General to address nuisance conditions  on the ocean beach or in the surf zone even though a town or county already  has police power jurisdiction over the area. Senate Bill 151   would   restore local government authority to consider both condition and location in deciding  that a storm or erosion-damaged structure is  a  public nuisance that must be removed.

 

 

Postcards From the Coast: Offshore Drilling

March 6, 2013

First,  a postcard from Raleigh to the coast — While fracking has used up most of the oxygen in recent  discussions of  state energy policy, offshore energy development has  taken on new political life.   The sections of Senate Bill 76 dealing with shale gas production have gotten more attention, but the bill also revives  legislative proposals on offshore  energy  development that did not survive  the 2011-2012 session. These sections of the bill apply to all kinds of offshore energy generation (including ocean  wind  turbines), but the bill clearly intends to  signal support for  offshore oil and gas drilling.

In Section 7, Senate Bill 76 proposes a way to divide up state revenue received from  offshore energy  production.   Whatever the merits of the Senate plan  — and it seems designed to promise money for every good thing possible —  it is not certain that the state will ever receive revenue from offshore  energy  production.   The United States has had no experience with  offshore wind turbines and the economics of ocean wind energy make it  an unlikely revenue  source.  Most oil and gas drilling sites are in federal  waters outside the limits of state jurisdiction;  all revenue from drilling in federal waters goes to the  United States  treasury unless Congress authorizes  revenue sharing with the   states.   Gulf Coast states benefit from a federal formula for sharing revenue from production in the Gulf of Mexico and something similar would be needed to allow  Atlantic coast states to receive revenue from production along the eastern seaboard.  Assuming Congress allows revenue sharing for Atlantic coast oil and gas production, the benefit to North Carolina  will depend on where  drilling  occurs and how  the revenue sharing formula works.

Note: The U.S. Department of Interior is not currently issuing offshore oil and gas leases in Atlantic coast waters.  Under the department’s  5- year lease plan, no Atlantic coast leases will be offered until 2018 at the earliest.

The bill also encourages the Governor to negotiate an interstate offshore energy compact with the governors of Virginia and South Carolina. As described in the bill, the purpose of the compact would largely be to lobby for earlier issuance of  oil and gas leases  off  the  east coast of the United States; revenue sharing for Atlantic coast states; and quicker permitting of offshore oil and gas activities.

Although Senate Bill 76 has not yet become law, Governor McCrory has already checked off two  items on the bill’s to-do list. Governor McCrory   joined the governors of South Carolina and Virginia in sending a letter to the President’s nominee for Secretary of the Interior, Sally Jewell,   urging her to  open east coast waters for oil and gas drilling  sooner.  A February 14 press release  issued by Gov. McCrory’s office includes excerpts from the letter and a link to the full text of the letter.

The following week, Governor McCrory joined the governors of Alaska, Louisiana, Texas, Virginia, Mississippi, Alabama, and South Carolina   as a new member of the Outer Continental Shelf Governor’s coalition.  The coalition advocates for more offshore leasing, quicker permitting of offshore oil and gas operations, and revenue sharing for all states with offshore energy production.

Senate Bill 76 has passed the Senate; the bill will go through three House committees (Commerce, Environment and Finance) before reaching the House floor.

 

House Changes to Senate Bill 10 — The Environment Commissions

On Wednesday, the House Committee on Commerce and Job Development approved a new version of Senate Bill 10 (reorganizing important state commissions) that  looks very different from  the bill approved by the Senate last week. The changes did not please  Senate bill sponsor Tom Apodaca who appeared in the House committee to present the Senate bill.  The most significant House changes affecting environment commissions:

Coastal Resources Commission

— Increased the number of CRC members from the 11 proposed by the Senate to 13;  nine members would be appointed by the Governor and  four by legislative leaders

— Restored seats representing commercial fishing, sports fishing, wildlife and agriculture.

Like the Senate Bill, the House PCS would eliminate specific seats for members with experience in forestry, finance, marine ecology and conservation.

— Restored language limiting the number of CRC members who receive income from real estate development or construction. The House bill would require that seven of thirteen seats on the CRC  be  filled by individuals “who do not derive any significant portion of their income from land development, construction, real estate sales, or lobbying and do not otherwise serve as agents for development related business activities”.

— Added language requiring that all members be N.C. residents and either  reside or  own property in the coastal area

— Makes the transition in CRC membership  more gradual by allowing four current members to serve for another year.  The bill would end the terms of all  CRC members when the bill becomes law with the exception of four members who have existing terms ending June 30, 2014.  Those four members are now in seats designated for commercial fishing,  wildlife or sports fishing, local government  and one of the three at-large seats.

Environmental Management Commission

— Increases the number of EMC members to 15 (compared to 13 in Senate bill); nine members would be appointed by the Governor and six by legislative leadership.

—  Restores the  seat  for  a person  with experience  in air pollution or air pollution control.

— Adds back a seat for a  member with expertise in fisheries, marine ecology  or fish and wildlife conservation

— Restores the EMC conflict of  interest language. The House bill would require that all of the Governor’s appointees (a majority of the EMC members) must be people who  do not derive any significant portion of their income from “persons subject to permits or enforcement orders” under  the water and air quality statutes.

— Makes a more gradual transition to new appointments, taking the same approach used in the CRC appointments. The terms of all current EMC members would  end March 15, except that  four members would serve out terms  scheduled to end on June 30 2015.  Those four  EMC members now hold  seats earmarked for: agriculture; an engineer with experience in water supply  or in water or air pollution; a citizen interested in water or air pollution; and a person with expertise in air pollution or air pollution control. (As explained by legislative staff, the four EMC members hold over for two years  because of the way EMC terms are staggered.)

After a stop in the House Rules Committee on Thursday,  the bill can go to  the House floor.  From there, it will almost certainly  have to go to a conference committee to work out differences with the Senate.

Senate Bill 10: The Environment Commissions

The North Carolina  Senate is considering a bill that would significantly change appointments to several influential state boards and commissions. This post focuses on two commissions affected by Senate Bill 10 — the Coastal Resources Commission (CRC) and the Environmental Management Commission (EMC). (This analysis is based on Edition 3 of the bill.)

The bill  immediately  gives the new governor and legislative leadership complete control over  the membership of these commissions by causing the terms of current members to end as soon as the bill becomes law — even though months or years may remain on each member’s statutory  term of office.   Senate Bill 10 also amends the appointment statutes for  the CRC and the EMC to reduce the total number of commission members;  increase the number  appointed by legislative leadership (reducing the governor’s influence);  and change appointment criteria. More detail on changes proposed for each commission below.

The Coastal Resources Commission (CRC) has  authority to adopt rules for development in environmentally sensitive areas of the twenty coastal counties.  Changes proposed in Senate Bill 10 would reduce the number of CRC members from 15 to 11 and for the first time divide appointments among the Governor, President pro tem of the Senate and Speaker of  the House. (Currently all CRC members are appointed by the Governor.)  The bill also changes the criteria for appointing CRC members by:

• Increasing the number of “at-large” members ( who do not have to meet specific appointment criteria).

• Eliminating seats  now earmarked for members with knowledge or experience in coastal fisheries, agriculture, forestry, marine ecology, conservation, and finance.

• Removing the requirement that a super-majority of commission members (13 of the current 15 members) must live in one of the coastal counties.  Under Senate Bill 10, none of the CRC members would have to actually  live in  a coastal county.

• Designating the six seats that have specific appointment criteria for one representative of a coastal business; two representatives of coastal land owners or developers; one  member with experience in a coastal local government; and two members with a background in either coastal engineering or coastal science.

The new appointment criteria raise several concerns. The Coastal Resources Commission regulates development in the twenty coastal counties, but Senate Bill 10 would no longer  guarantee representation of coastal residents on the commission.  The commission would lose scientific expertise, but even more important it would lose the (nonpartisan) political breadth needed to create consensus on controversial coastal policies.   Under the new appointment criteria, it would be possible to have a CRC composed entirely of members representing  business and development interests, leaving participants in other parts of the coastal economy (such as fisheries, forestry, and agriculture) without  influence on major coastal policy decisions.

The bill also changes the membership of the Coastal Resources Advisory Council, a non-regulatory body  created to advise the Coastal Resources Commission.  Most  members of the Advisory Council represent local governments; each coastal county has a representative selected by the county commissioners and other members represent coastal cities or multi-county planning districts.  Senate Bill 10  reduces the total number of Advisory Council members from 45 to 20 and does not set aside any seats for local government representatives.  The change could  leave coastal  local governments with much less influence over coastal policy.

The Environmental Management Commission has responsibility for adopting state air quality, water quality, and water resource standards. Senate Bill 10 reduces the total number of EMC members from 19 to 13. The governor and legislative leaders already share authority to appoint EMC members, but Senate Bill 10 would lessen the governor’s influence on the EMC relative to the General Assembly by reducing the number of governor’s appointees to seven. Legislative leaders would continue to appoint six members,  representing nearly half of the smaller EMC.

The bill  makes significant changes in appointment criteria for EMC members by eliminating seats now earmarked for members with experience in public health, fish and wildlife conservation, groundwater hydrology, local government, and air pollution.  The new criteria proposed for governors appointments would:

• Retain a seat on the EMC for a physician, but no longer require the physician member to have “specialized training and experience in the health effects of environmental pollution”.

• Require the governor to choose between having  members with experience in hydrology,   water pollution control or the effects of water pollution.

• Require the governor to choose between having a  member with expertise in ecology or a member with expertise in air pollution.

• Reduce the three seats on the EMC for members of the public at large who have “an interest in water and air pollution control” to  one at-large member (without the qualifying language).

The  proposed changes in appointment criteria could  result in a commission without  expertise  in critical areas.  In several instances, the governor will be required  to decide which of several areas of environmental expertise to exclude in making appointments.  For example, choices forced by the new  criteria could leave  the  EMC   without  expertise  in air pollution or air pollution control – one of the most complicated and technically demanding subjects that the EMC has to address.   Knowledge of hydrology, water quality,  ecology and air pollution can be found on the DENR staff, but the EMC would lose the independent perspective provided by commissioners with expertise in each of those areas.

By changing EMC appointments, Senate Bill 10 will also indirectly affect the makeup of other environmental commissions that have seats designated for a member of the EMC. Those include the Mining and Energy Commission and the Sedimentation Pollution Control Commission.

Finally, Senate Bill 10 repeals language requiring that at least nine EMC members must be people who do not derive significant income from  activities regulated by the commission.  The language in G.S. 143B-283(c) exists  in part to meet federal requirements for  delegated permitting programs  under the  Clean Water Act and Clean Air Act.   Complete repeal of the language may cause EPA to question  North Carolina compliance  with federal rules governing those  delegated  programs. More detail about this issue later.