State regulation of ‘tidal ditches’ unjustly limits coastal land owners

The culture of an environmental regulatory agency is not unlike that of any idealistic movement. There is always a new mountain to climb in pursuit of some imaginary nirvana. The creeping growth of any environmental regulatory agency is as predictable as sin.

Typically, as an environmental regulatory culture develops over time, staff rarely consult the actual regulations they are supposed to be following. The culture enters into a type of echo chamber where people start to believe, then actually believe, they have jurisdiction over things they really don’t. This results in agencies exerting authority over areas the law never intended.

In addition, as environmental regulatory agencies grow, they are invariably infiltrated with personnel having advanced degrees in environmentalism, who use the regulatory game, with missionary zeal, to promote their own personal brand of nature worship. So predictably, a glaring and egregious example of regulatory overreach starts to develop.

The relationship of coastal residents with the Coastal Area Management Act (CAMA) has always been a point of stress and conflict. The law was adopted in 1974 and only applies to the 20 North Carolina coastal counties. Being singled out for special regulations has never sat well with coastal area property owners. However, time and a certain measure of predictability has led to a measure of peace, despite the cultural tension.

A smaller subset of individuals within the coastal counties are the actual regulated public, people with land having particular characteristics that qualify as CAMA Areas of Environmental Concern (AEC). To the uninformed coastal property owner, a CAMA AEC is a regulatory liability lying in wait to bite them in the rear end. The concern is that any work they do on the property could precipitate that dreaded knock on the door, notice of violation via certified letter, or both. Like you had nothing else to keep you awake at night! CAMA jurisdiction is supposedly limited, however, only to designated CAMA AECs.

This tense relationship was shattered recently when it was discovered the North Carolina Division of Coastal Management (NCDCM), the foot soldiers of the CAMA, were taking jurisdiction over “tidal ditches.” Problem is, there is no such thing as a CAMA “tidal ditch.” But apparently this has been a concept that has taken root, and, over time, has started to grow in popularity within the organization. NCDCM is now claiming jurisdiction over man-made ditches dug in the high ground on private property on the lower terraces of the coastal plain, wherever tidal waters encroach.

There, tidal ditches encroach into properties thousands of feet. With multiple ditches in each field, these jurisdictional determinations took on the look of a hay rake and carried with them a plague of setbacks and prohibitions. In claiming this newfound jurisdiction, NCDCM was, with just a mere interpretation, rendering hundreds and possibly thousands of previously unregulated and otherwise perfectly beneficial acres of land, useless to any activity outside of agriculture and forestry.

Apparently, this practice has been going for some time, undetected, simply by NCDCM bullying a gullible and unsuspecting public on a case-by-case basis. Oftentimes, private sector environmental consultants are complicit in conducting the actual dirty work on the public, which is no surprise. Most are former regulatory employees of either the NCDCM or the US Army Corps of Engineers.

This gross expansion of regulatory authority is completely fabricated. Ditches, as a land form, are not mentioned as a regulated feature anywhere in the CAMA. In addition, regulation of man-made ditches dug entirely in the high ground on private property is precluded by the CAMA Implementation Clause.

The CAMA Implementation Clause (NC General Statute §113A-102(a)) contains explicit instructions from the state legislature as to how the CAMA is to be applied. The Implementation Clause restricts CAMA jurisdiction to the “natural environment,” and a man-made ditch is the opposite of the “natural environment.”

The Implementation Clause also restricts CAMA jurisdiction to the “natural shoreline,” and a ditch edge cannot reasonably be considered a “natural shoreline.” Also, where marsh plants occur in the manufactured ditch environment, these cannot be considered natural. Furthermore, NCDCM regulation of these man-made ditches is a breach of the implied contractual agreement between the State of North Carolina and coastal property owners that the CAMA would protect private property rights.

Despite this, NCDCM simply blows off the CAMA Implementation Clause passage as meaningless, with the Coastal Resources Commission (CRC), NCDCM’s oversight body, seemingly taking their side.

This issue has become a flash point of contention between the NCDCM, the CRC, and some coastal residents. In addition, a group of coastal senators introduced a bill (SB 734) that would clear up the issue in favor of the coastal property owners; whereas, the CRC had some intense discussions and public comment in their recent meeting in Manteo this past week. Nonetheless, the CRC, NCDCM, and the Department of Environmental Quality (DEQ) are refusing to back down over their jurisdictional claims over tidal waters and the adjacent lands wherever they may go.

In a twist of irony, even the on-going personal home-development site of Tancred Miller, director of the NCDCM (who also serves as the executive secretary of the CRC) got brought into the fray. It was pointed out to DEQ officials that uniform application of this new CAMA jurisdictional expansion would require even Miller to get CAMA permits for the now-jurisdictional ditches that wind through his property in Carteret County.

Because most of the areas in question are farm fields, NCDCM asserts a “no harm, no foul” attitude and points to the CAMA statutory exemption for agriculture and forestry. NCDCM claims that so long as the land is kept in farming, no problem, while knowing at the same time that if/when the land use is changed to say, housing, the full weight of all the CAMA AEC restrictions applies.

The CRC could clear this matter up by simply declaring CAMA statutory authority and CAMA AEC jurisdiction ends at the coastal creek/man-made ditch intersection, following the proposed legislation outlined in SB734. This could be accomplished by the CRC making a resolution to exempt man-made ditches dug in the high ground on private property.

For them to do this isn’t like they are considering a new AEC, rule, or some other regulatory constraint, subject to a complicated Administrative Procedures Act process. It is simply acknowledging they never had CAMA jurisdiction over these man-made ditches, or anything in them, in the first place. This could be cleared up by a simple motion and majority vote at their next regularly scheduled meeting.

Whether its by legislation or resolution, stop this Tidal Tyranny!