GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	5 

SENATE BILL 52*
Agriculture/Environment/Natural Resources Committee Substitute Adopted 2/7/95
House Committee Substitute Favorable 5/3/95
House Committee Substitute #2 Favorable 6/14/95
House Committee Substitute #3 Favorable 6/29/95

Short Title:  State-Owned Submerged Lands.	(Public)

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Sponsors:

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Referred to:  

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January 26, 1995

A BILL TO BE ENTITLED
AN ACT TO AMEND THE PROVISIONS OF CHAPTER 146 CONCERNING SUBMERGED LANDS OR LANDS COVERED BY NAVIGABLE WATERS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 146-1 reads as rewritten:
"§ 146-1.  Intent of Subchapter.
(a)	It is the purpose and intent of this Subchapter to vest in the Department of Administration, subject to rules and regulations adopted by the Governor and approved by the Council of State as hereinafter provided, responsibility for the management, control and disposition of all vacant and unappropriated lands, swamplands, lands acquired by the State by virtue of being sold for taxes, and submerged lands, title to which is vested in the State or in any State agency, to be exercised subject to the provisions of this Subchapter.
(b)	Further, it is the intent of this Subchapter to establish within the Department, a method for obtaining easements for State-owned submerged lands or lands covered by navigable waters that includes compensation, recognizes the common law rights of riparian or littoral property owners, and balances those rights with the State's obligation to protect public trust rights for all of its citizens.  The North Carolina General Assembly finds that the State is financially unable to provide the necessary access for its citizens to exercise public trust rights and, therefore, recognizes the role that publicly and privately owned piers, docks, wharves, marinas, and other structures located in or over submerged lands or lands covered by navigable waters generally serve in furthering public trust purposes including:
(1)	Providing citizens with access and ability to exercise public trust boating, fishing, and swimming activities;
(2)	Enhancing the value of appurtenant upland property values with the resulting increased collection of ad valorem taxes;
(3)	Enhancing coastal tourism; and
(4)	Increasing local participation in boating and fishing activities with the resulting increase in taxes paid for fuel, fishing tackle, boat equipment, and imported boats and motors which taxes contribute to the sound economy of the State, and some of which are paid into the federal Wallop-Breaux Fund for redistribution to the State for water resource enhancements and water access improvements."
Sec. 2.  G.S. 146-12 reads as rewritten:
"§ 146-12.  Easements in lands covered by water.
(a)	The Department of Administration may grant, to adjoining riparian or littoral owners, easements in lands covered by navigable waters or by the waters of any lake owned by the State for such purposes and upon such conditions as it may deem proper, with the approval of the Governor and Council of State. The Department may, with the approval of the Governor and Council of State, revoke any such easement upon the violation by the grantee or his assigns of the conditions upon which it was granted.
Every such easement shall include only the front of the tract owned by the riparian or littoral owner to whom the easement is granted, shall extend no further than the deep water, and shall in no respect obstruct or impair navigation.
When any such easement is granted in front of the lands of any incorporated town, the governing body of the town shall regulate the line on deep water to which wharves may be built.
(b)	Easements Not Requiring Approval by the Governor or Council of State. – In accordance with the provisions in subsections (c) through (l) of this section, the Department of Administration shall grant to adjoining riparian or littoral owners easements in submerged lands or lands covered by navigable waters without the approval of the Governor and the Council of State for:
(1)	Existing structures permitted under Article 7 of Chapter 113A or structures existing prior to the effective date of the permitting requirements of Article 7 of Chapter 113A of the General Statutes.
(2)	New structures permitted under Article 7 of Chapter 113A of the General Statutes.
(c)	Voluntary Applications for Easements for Existing Structures. – Riparian or littoral property owners of existing structures may voluntarily obtain an easement under subsection (b) of this section in accordance with the procedures set forth in this section.  For purposes of this section, the term 'existing structures' means all presently existing piers, docks, marinas, wharves, and other structures located over or upon State-owned submerged lands or lands covered by navigable waters.
(d)	Easement Application. – An application by a riparian or littoral owner of a new or existing structure for an easement under subsection (b) of this section shall include all of the following and shall:
(1)	Be made in writing to the Secretary.
(2)	Be accompanied by a surveyed plat of the footprint and total square footage of all structures located in or over submerged lands or lands covered by navigable waters.  The footprint shall include the area of State-owned submerged lands or lands covered by navigable waters that are enclosed on three or more sides by any structure.
(3)	Be accompanied by a copy of the 'CAMA' permit issued under Article 7 of Chapter 113A of the General Statutes if the structure required a permit at the time of construction.
(4)	Be accompanied by a copy of the deed or other instrument through which the applicant establishes ownership of the adjacent riparian or littoral property.
(5)	Specify the use or uses associated with the structure to be covered by the easement.
(6)	Be accompanied by the appropriate easement purchase payment.
(e)	Terms of Easement. – The terms of each easement granted under subsection (b) of this section shall provide that the easement:
(1)	Is appurtenant to specifically described, adjacent riparian or littoral property and runs with the land.
(2)	Specifies that the holder of the easement shall not exclude or prevent the public from exercising public trust rights, including commercial and recreational fishing, shellfishing, seine netting, pound netting, and other fishing rights.
(3)	Is valid for a term of 50 years from the date of issuance.
(4)	Is eligible for renewal.
(5)	Is granted in the public interest for good and valuable consideration received by the State.
(6)	Specifies by description or attached plat the footprint of the structure for which the easement is issued.
(7)	Specifies the uses for which the easement is being granted, including:
a.	The right of reasonable access for all vessels traditionally used in the main watercourse area to deep water or, where present, to a specified navigational channel;
b.	The right to moor vessels at or adjacent to the structure;
c.	The right to enhance or improve the adjacent riparian or littoral property; and
d.	All other reasonable, nonexclusive public trust uses as specified in the easement application, to the extent not otherwise limited by provisions of this Subchapter or any other law.
(8)	Specifies that rights granted include the right to repair, rebuild, or restore existing structures consistent with Article 7 of Chapter 113A of the General Statutes.
(9)	Specifies that the exercise of any rights under the easement shall be contingent upon obtaining all required permits.
(f)	Easement Purchase Payment. – The easement purchase payment shall be computed on the basis of one thousand dollars ($1,000) per acre of footprint coverage.  For footprint coverage less than one acre, the acreage shall be rounded up to the nearest one quarter acre and payment shall equal two hundred and fifty dollars ($250.00) per quarter acre. The minimum payment shall be five hundred dollars ($500.00) if any payment is owed after the riparian credit is applied.  A riparian credit shall be given against any easement purchase payment in an amount equal to the number of linear feet of shoreline multiplied by a factor of 54 square feet.  For purposes of determining the linear feet of shoreline owned, an application submitted by a corporation or other entity whose members include riparian or littoral lot owners, which owners have the right to use the structure for which the easement is sought, and whose lots are restricted from construction thereon of other structures for similar use, shall be considered an application whose easement purchase payment shall be determined by using the entirety of such use restricted shoreline for purposes of determining the applicable riparian credit.  Shoreline utilization shall be considered 'use restricted' if riparian or littoral structures are prohibited by either permit condition or by restrictive covenant or similar, enforceable private restriction.
(g)	Transfer of Easements. – An easement granted under subsection (b) of this section shall be transferred to a subsequent owner of the adjacent riparian or littoral property upon written notification to the Department of Administration.  The notification shall be given within 12 months of the transfer of title to the adjacent riparian or littoral property and shall be accompanied by the instrument of transfer and an easement purchase payment as follows:
(1)	The same easement purchase payment as the initial payment during the first 25 years of the easement term; and
(2)	Twice the amount of the initial easement purchase payment during the second 25 years of the easement term.
(h)	Modification of Easements. – Any expansion of the footprint of an existing structure shall require an easement or modification of any existing easement.  The application for a modification of an easement shall be as provided in subsection (d) of this section. The easement purchase payment shall be based only on the footprint of the expansion after applying the riparian credit.  The minimum easement purchase payment shall be five hundred dollars ($500.00) if any payment is owed after the riparian credit is applied.  No easement purchase payment shall be required for the modification of an existing use that does not expand the footprint of the preexisting structure.
(i)	Renewal of easements. – Renewal easements shall be issued at the expiration of the initial term for one additional term of 50 years.  Renewal easements shall be subject to the conditions and easement purchase payments applicable to initial easements at the time of renewal.  Applications for renewal easements shall be submitted within 180 days of the notice of expiration by the Department of Administration.  Written notification of expiring easements shall be given at least 180 days prior to expiration.
(j)	Revocation of Easements. – The Department of Administration may, with the prior written approval of the Governor and Council of State, revoke any easement issued under subsection (b) of this section upon the violation by the grantee or his assigns of the conditions upon which it was granted.  Any revocation of an easement shall be in writing and shall entitle the easement holder to file a petition for a contested case hearing in accordance with Article 3 of Chapter 150B of the General Statutes.  No other actions by the Department under this section shall be subject to the provisions of Article 3 or 4 of Chapter 150B of the General Statutes.  No person other than the easement holder shall be entitled to any administrative review.
(k)	Notification of Availability of Voluntary Easements. – Applications for easements for existing structures shall be received by the Secretary within 36 months of the effective date of this section.  The Secretary shall provide public notice of the availability of voluntary easements by placing an advertisement in at least one newspaper of general circulation in each of the counties identified under G.S. 113A-103(2) at least once every six months during the 36-month period.
(l)	Issuance of Easements. – Within 75 days of receipt of a completed application under subsection (d) of this section, the Secretary shall issue the requested easement in a form sufficient for recording in the register of deeds of the county or counties in which any part of the structure is located.  Failure to issue the requested easement within 75 days of receipt of a completed application and any applicable easement purchase payments shall be treated as issuance of the requested easement.
(m)	Exemptions. – The following types of structures shall not require an easement under this section:
(1)	Piers, docks, or similar structures constructed appurtenant to a residential lot, intended to or permitted for the sole use and benefit of the owners or occupants of such residential lot for nonincome producing purposes;
(2)	Structures constructed by any public utility that provide or assist in the provision of utility service;
(3)	Structures constructed or owned by the State of North Carolina, or any political subdivision, agency, or department of the State, for the duration that the structures are owned by the entity;
(4)	Structures on a privately owned lake;
(5)	Hydroelectric reservoirs licensed by the Federal Energy Regulatory Commission; or
(6)	Submerged lands or lands covered by navigable waters not owned by or for the benefit of the public that have been created by dredging or excavating lands."
Sec. 3.  Article 1 of Chapter 146 of the General Statutes is amended by adding a new section to read:
"§ 146-14.1.  Natural Resources Easement Fund.
The Natural Resources Easement Fund is established as a nonreverting fund within the Department of Administration.  All easement purchase payment monies collected by the Secretary shall be deposited in the Fund.  The Fund may be used for direct costs of administering the program.  Fifty percent (50%) of the net proceeds in the Fund shall be transferred annually to the Marine Fisheries Commission, and fifty percent (50%) of the net proceeds in the Fund shall be transferred annually to the Wildlife Resources Commission, to be used for the express purpose of enhancing public trust resources and increasing the public's access to and use of public trust resources, including, but not limited to, meeting the State's cost share obligations for federal Wallop-Breaux projects, enhancing water resources and expanding the number of public boat ramps and other means of public waters access within the counties designated under G.S. 113A-103(2), and any other public trust access purposes."
Sec. 4.  G.S. 146-64 is amended by adding a new subdivision to read:
"(10)	For purposes of this Subchapter, 'deep water' means the depth reasonably necessary to provide and allow reasonable access for all vessels traditionally used in the main watercourse area as of the time of the easement application."
Sec. 5.  This act is effective upon ratification. Nothing in this act shall require the adoption of rules to implement the provisions herein.  The authorization established under this act applies only to the Department of Administration and shall not be used by any other agency to administer or regulate activities affecting the public trust.