§ 113‑229. Permits to dredge or fill in orabout estuarine waters or State‑owned lakes.
(a) Except as hereinafter provided before any excavation orfilling project is begun in any estuarine waters, tidelands, marshlands, orState‑owned lakes, the party or parties desiring to do such shall firstobtain a permit from the Department. Granting of the State permit shall notrelieve any party from the necessity of obtaining a permit from the UnitedStates Army Corps of Engineers for work in navigable waters, if the same isrequired. The Department shall continue to coordinate projects pertaining tonavigation with the United States Army Corps of Engineers.
(b) All applications for such permits shall include a plat ofthe areas in which the proposed work will take place, indicating the location,width, depth and length of any proposed channel, the disposal area, and a copyof the deed or other instrument under which the applicant claims title to theproperty adjoining the waters in question, (or any land covered by waters),tidelands, or marshlands, or if the applicant is not the owner, then a copy ofthe deed or other instrument under which the owner claims title plus writtenpermission from the owner to carry out the project on his land.
(c) In lieu of a deed or other instrument referred to insubsection (b) of this section, the agency authorized to issue such permits mayaccept some other reasonable evidence of ownership of the property in questionor other lawful authority to make use of the property.
(c1) The Coastal Resources Commission may, by rule, designatecertain classes of major and minor development for which a general or blanketpermit may be issued. In developing these rules, the Commission shall considerall of the following:
(1) The size of the development.
(2) The impact of the development on areas of environmentalconcern.
(3) How often the class of development is carried out.
(4) The need for on‑site oversight of the development.
(5) The need for public review and comment on individualdevelopment projects.
(c2) General permits may be issued by the Commission as rulesunder the provisions of G.S. 113A‑118.1. Individual development carriedout under the provisions of general permits shall not be subject to themandatory notice provisions of this section. The Commission may imposereasonable notice provisions and other appropriate conditions and safeguards onany general permit it issues. The variance, appeals, and enforcement provisionsof this Article shall apply to any individual development projects undertakenunder a general permit.
(d) An applicant for a permit, other than an emergency permit,shall send a copy of his application to the owner of each tract of riparianproperty that adjoins that of the applicant. The copy shall be served bycertified mail or, if the owner's address is unknown and cannot be ascertainedwith due diligence or if a diligent but unsuccessful effort has been made toserve the copy by certified mail, by publication in accordance with the rulesof the Commission. An owner may file written objections to the permit with theDepartment for 30 days after he is served with a copy of the application. Inthe case of a special emergency dredge or fill permit the applicant mustcertify that he took all reasonable steps to notify adjacent riparian owners ofthe application for a special emergency dredge and fill permit prior tosubmission of the application. Upon receipt of this certification, theSecretary shall issue or deny the permit within the time period specified in(e) of this section, upon the express understanding from the applicant that hewill be entirely liable and hold the State harmless for all damage to adjacentriparian landowners directly and proximately caused by the dredging or fillingfor which approval may be given.
(e) Applications for permits except special emergency permitapplications shall be circulated by the Department among all State agenciesand, in the discretion of the Secretary, appropriate federal agencies havingjurisdiction over the subject matter which might be affected by the project sothat such agencies will have an opportunity to raise any objections they mighthave. The Department may deny an application for a dredge or fill permit uponfinding: (1) that there will be significant adverse effect of the proposeddredging and filling on the use of the water by the public; or (2) that therewill be significant adverse effect on the value and enjoyment of the propertyof any riparian owners; or (3) that there will be significant adverse effect onpublic health, safety, and welfare; or (4) that there will be significantadverse effect on the conservation of public and private water supplies; or (5)that there will be significant adverse effect on wildlife or fresh water,estuarine or marine fisheries. In the absence of such findings, a permit shallbe granted. Such permit may be conditioned upon the applicant amending hisproposal to take whatever measures are reasonably necessary to protect thepublic interest with respect to the factors enumerated in this subsection.Permits may allow for projects granted a permit the right to maintain suchproject for a period of up to 10 years. The right to maintain such projectshall be granted subject to such conditions as may be reasonably necessary toprotect the public interest. The Coastal Resources Commission shall coordinatethe issuance of permits under this section and G.S. 113A‑118 and thegranting of variances under this section and G.S. 113A‑120.1 to avoidduplication and to create a single, expedited permitting process. The CoastalResources Commission may adopt rules interpreting and applying the provisionsof this section and rules specifying the procedures for obtaining a permitunder this section. Maintenance work as defined in this subsection shall be limitedto such activities as are required to maintain the project dimensions as foundin the permit granted. The Department shall act on an application for permitwithin 75 days after the completed application is filed, provided theDepartment may extend such deadline by not more than an additional 75 days ifnecessary properly to consider the application, except for applications for aspecial emergency permit, in which case the Department shall act within twoworking days after an application is filed, and failure to so act shallautomatically approve the application.
(e1) The Secretary is empowered to issue special emergency dredgeor fill permits upon application. Emergency permits may be issued only whenlife or structural property is in imminent danger as a result of rapid recenterosion or sudden failure of a man‑made structure. The Coastal ResourcesCommission may elaborate by rule upon what conditions the Secretary may issue aspecial emergency dredge or fill permit. The Secretary may condition the emergencypermit upon any reasonable conditions, consistent with the emergency situation,he feels are necessary to reasonably protect the public interest. Where anapplication for a special emergency permit includes work beyond which theSecretary, in his discretion, feels necessary to reduce imminent dangers tolife or property he shall issue the emergency permit only for that part of theproposed work necessary to reasonably reduce the imminent danger. All furtherwork must be applied for by application for an ordinary dredge or fill permit.The Secretary shall deny an application for a special dredge or fill permitupon a finding that the detriment to the public which would occur on issuanceof the permit measured by the five factors in G.S. 113‑229(e) clearlyoutweighs the detriment to the applicant if such permit application should bedenied.
(f) A permit applicant who is dissatisfied with a decision onhis application may file a petition for a contested case hearing under G.S.150B‑23 within 20 days after the decision is made. Any other person whois dissatisfied with a decision to deny or grant a permit may file a petitionfor a contested case hearing only if the Coastal Resources Commissiondetermines, in accordance with G.S. 113A‑121.1(c), that a hearing isappropriate. A permit is suspended from the time a person seeks administrativereview of the decision concerning the permit until the Commission determinesthat the person seeking the review cannot commence a contested case or theCommission makes a final decision in a contested case, as appropriate, and noaction may be taken during that time that would be unlawful in the absence ofthe permit.
(g) G.S. 113A‑122 applies to an appeal of a permitdecision under subsection (f).
(h) Repealed by Session Laws 1987, c. 827, s. 105.
(h1) Except as provided in subsection (h2) of this section, allconstruction and maintenance dredgings of beach‑quality sand may beplaced on the affected downdrift ocean beaches or, if placed elsewhere, anequivalent quality and quantity of sand from another location shall be placedon the downdrift ocean beaches.
(h2) Clean, beach quality material dredged from navigationalchannels within the active nearshore, beach or inlet shoal systems shall not beremoved permanently from the active nearshore, beach or inlet shoal system.This dredged material shall be disposed of on the ocean beach or shallow activenearshore area where it is environmentally acceptable and compatible with otheruses of the beach.
(i) Subject to subsections (h1) and (h2) of this section, allmaterials excavated pursuant to such permit, regardless of where placed, shallbe encased or entrapped in such a manner as to minimize their moving back intothe affected water.
(j) None of the provisions of this section shall relieve anyriparian owner of the requirements imposed by the applicable laws andregulations of the United States.
(k) Any person, firm, or corporation violating the provisions ofthis section shall be guilty of a Class 2 misdemeanor. Each day's continuedoperation after notice by the Department to cease shall constitute a separateoffense. A notice to cease shall be served personally or by certified mail.
(l ) The Secretary may, either before or after the institutionof proceedings under subsection (k) of this section, institute a civil actionin the superior court in the name of the State upon the relation of theSecretary, for damages, and injunctive relief, and for such other and furtherrelief in the premises as said court may deem proper, to prevent or recover forany damage to any lands or property which the State holds in the public trust,and to restrain any violation of this section or of any provision of a dredgingor filling permit issued under this section. Neither the institution of the actionnor any of the proceedings thereon shall relieve any party to such proceedingsfrom the penalty prescribed by this section for any violation of the same.
(m) This section shall apply to all persons, firms, orcorporations, their employees, agents, or contractors proposing excavation orfilling work in the estuarine waters, tidelands, marshlands and State‑ownedlakes within the State, and the work to be performed by the State government orlocal governments. Provided, however, the provisions of this section shall notapply to the activities and functions of the Department and local healthdepartments that are engaged in mosquito control for the protection of thehealth and welfare of the people of the coastal area of North Carolina asprovided under G.S. 130A‑346 through G.S. 130A‑349. Provided,further, this section shall not impair the riparian right of ingress and egressto navigable waters.
(n) Within the meaning of this section:
(1) "State‑owned lakes" include man‑madeas well as natural lakes.
(2) "Estuarine waters" means all the waters of theAtlantic Ocean within the boundary of North Carolina and all the waters of thebays, sounds, rivers, and tributaries thereto seaward of the dividing linebetween coastal fishing waters and inland fishing waters agreed upon by theDepartment and the Wildlife Resources Commission, within the meaning of G.S.113‑129.
(3) "Marshland" means any salt marsh or other marshsubject to regular or occasional flooding by tides, including wind tides(whether or not the tidewaters reach the marshland areas through natural orartificial watercourses), provided this shall not include hurricane or tropicalstorm tides. Salt marshland or other marsh shall be those areas upon which growsome, but not necessarily all, of the following salt marsh and marsh plantspecies: Smooth or salt water Cordgrass (Spartina alterniflora) , BlackNeedlerush (Juncus roemerianus) , Glasswort (Salicornia spp.) , Salt Grass(Distichlis spicata) , Sea Lavender (Limonium spp.) , Bulrush (Scirpus spp.) ,Saw Grass (Cladium jamaicense) , Cattail (Typha spp.) , Salt‑Meadow Grass(Spartina patens) , and Salt Reed‑Grass (Spartina cynosuroides) . (1969, c. 791, s. 1; 1971, c. 1159, s. 6; 1973, c. 476, s. 128; c.1262, ss. 28, 86; c. 1331, s. 3; 1975, c. 456, ss. 1‑7; 1977, c. 771, s.4; 1979, c. 253, ss. 1, 2; 1983, c. 258, ss. 1‑3; c. 442, s. 2; 1987, c.827, s. 105; 1989, c. 727, s. 107; 1993, c. 539, s. 844; 1994, Ex. Sess., c.24, s. 14(c); 1993 (Reg. Sess., 1994), c. 777, s. 6(a), (b); 1995, c. 509, s.55.1(a)‑(c); 2000‑172, ss. 3.1, 3.2; 2002‑126, ss. 29.2(h)‑(j).)
§ 113‑229. Permits to dredge or fill in orabout estuarine waters or State‑owned lakes.
(a) Except as hereinafter provided before any excavation orfilling project is begun in any estuarine waters, tidelands, marshlands, orState‑owned lakes, the party or parties desiring to do such shall firstobtain a permit from the Department. Granting of the State permit shall notrelieve any party from the necessity of obtaining a permit from the UnitedStates Army Corps of Engineers for work in navigable waters, if the same isrequired. The Department shall continue to coordinate projects pertaining tonavigation with the United States Army Corps of Engineers.
(b) All applications for such permits shall include a plat ofthe areas in which the proposed work will take place, indicating the location,width, depth and length of any proposed channel, the disposal area, and a copyof the deed or other instrument under which the applicant claims title to theproperty adjoining the waters in question, (or any land covered by waters),tidelands, or marshlands, or if the applicant is not the owner, then a copy ofthe deed or other instrument under which the owner claims title plus writtenpermission from the owner to carry out the project on his land.
(c) In lieu of a deed or other instrument referred to insubsection (b) of this section, the agency authorized to issue such permits mayaccept some other reasonable evidence of ownership of the property in questionor other lawful authority to make use of the property.
(c1) The Coastal Resources Commission may, by rule, designatecertain classes of major and minor development for which a general or blanketpermit may be issued. In developing these rules, the Commission shall considerall of the following:
(1) The size of the development.
(2) The impact of the development on areas of environmentalconcern.
(3) How often the class of development is carried out.
(4) The need for on‑site oversight of the development.
(5) The need for public review and comment on individualdevelopment projects.
(c2) General permits may be issued by the Commission as rulesunder the provisions of G.S. 113A‑118.1. Individual development carriedout under the provisions of general permits shall not be subject to themandatory notice provisions of this section. The Commission may imposereasonable notice provisions and other appropriate conditions and safeguards onany general permit it issues. The variance, appeals, and enforcement provisionsof this Article shall apply to any individual development projects undertakenunder a general permit.
(d) An applicant for a permit, other than an emergency permit,shall send a copy of his application to the owner of each tract of riparianproperty that adjoins that of the applicant. The copy shall be served bycertified mail or, if the owner's address is unknown and cannot be ascertainedwith due diligence or if a diligent but unsuccessful effort has been made toserve the copy by certified mail, by publication in accordance with the rulesof the Commission. An owner may file written objections to the permit with theDepartment for 30 days after he is served with a copy of the application. Inthe case of a special emergency dredge or fill permit the applicant mustcertify that he took all reasonable steps to notify adjacent riparian owners ofthe application for a special emergency dredge and fill permit prior tosubmission of the application. Upon receipt of this certification, theSecretary shall issue or deny the permit within the time period specified in(e) of this section, upon the express understanding from the applicant that hewill be entirely liable and hold the State harmless for all damage to adjacentriparian landowners directly and proximately caused by the dredging or fillingfor which approval may be given.
(e) Applications for permits except special emergency permitapplications shall be circulated by the Department among all State agenciesand, in the discretion of the Secretary, appropriate federal agencies havingjurisdiction over the subject matter which might be affected by the project sothat such agencies will have an opportunity to raise any objections they mighthave. The Department may deny an application for a dredge or fill permit uponfinding: (1) that there will be significant adverse effect of the proposeddredging and filling on the use of the water by the public; or (2) that therewill be significant adverse effect on the value and enjoyment of the propertyof any riparian owners; or (3) that there will be significant adverse effect onpublic health, safety, and welfare; or (4) that there will be significantadverse effect on the conservation of public and private water supplies; or (5)that there will be significant adverse effect on wildlife or fresh water,estuarine or marine fisheries. In the absence of such findings, a permit shallbe granted. Such permit may be conditioned upon the applicant amending hisproposal to take whatever measures are reasonably necessary to protect thepublic interest with respect to the factors enumerated in this subsection.Permits may allow for projects granted a permit the right to maintain suchproject for a period of up to 10 years. The right to maintain such projectshall be granted subject to such conditions as may be reasonably necessary toprotect the public interest. The Coastal Resources Commission shall coordinatethe issuance of permits under this section and G.S. 113A‑118 and thegranting of variances under this section and G.S. 113A‑120.1 to avoidduplication and to create a single, expedited permitting process. The CoastalResources Commission may adopt rules interpreting and applying the provisionsof this section and rules specifying the procedures for obtaining a permitunder this section. Maintenance work as defined in this subsection shall be limitedto such activities as are required to maintain the project dimensions as foundin the permit granted. The Department shall act on an application for permitwithin 75 days after the completed application is filed, provided theDepartment may extend such deadline by not more than an additional 75 days ifnecessary properly to consider the application, except for applications for aspecial emergency permit, in which case the Department shall act within twoworking days after an application is filed, and failure to so act shallautomatically approve the application.
(e1) The Secretary is empowered to issue special emergency dredgeor fill permits upon application. Emergency permits may be issued only whenlife or structural property is in imminent danger as a result of rapid recenterosion or sudden failure of a man‑made structure. The Coastal ResourcesCommission may elaborate by rule upon what conditions the Secretary may issue aspecial emergency dredge or fill permit. The Secretary may condition the emergencypermit upon any reasonable conditions, consistent with the emergency situation,he feels are necessary to reasonably protect the public interest. Where anapplication for a special emergency permit includes work beyond which theSecretary, in his discretion, feels necessary to reduce imminent dangers tolife or property he shall issue the emergency permit only for that part of theproposed work necessary to reasonably reduce the imminent danger. All furtherwork must be applied for by application for an ordinary dredge or fill permit.The Secretary shall deny an application for a special dredge or fill permitupon a finding that the detriment to the public which would occur on issuanceof the permit measured by the five factors in G.S. 113‑229(e) clearlyoutweighs the detriment to the applicant if such permit application should bedenied.
(f) A permit applicant who is dissatisfied with a decision onhis application may file a petition for a contested case hearing under G.S.150B‑23 within 20 days after the decision is made. Any other person whois dissatisfied with a decision to deny or grant a permit may file a petitionfor a contested case hearing only if the Coastal Resources Commissiondetermines, in accordance with G.S. 113A‑121.1(c), that a hearing isappropriate. A permit is suspended from the time a person seeks administrativereview of the decision concerning the permit until the Commission determinesthat the person seeking the review cannot commence a contested case or theCommission makes a final decision in a contested case, as appropriate, and noaction may be taken during that time that would be unlawful in the absence ofthe permit.
(g) G.S. 113A‑122 applies to an appeal of a permitdecision under subsection (f).
(h) Repealed by Session Laws 1987, c. 827, s. 105.
(h1) Except as provided in subsection (h2) of this section, allconstruction and maintenance dredgings of beach‑quality sand may beplaced on the affected downdrift ocean beaches or, if placed elsewhere, anequivalent quality and quantity of sand from another location shall be placedon the downdrift ocean beaches.
(h2) Clean, beach quality material dredged from navigationalchannels within the active nearshore, beach or inlet shoal systems shall not beremoved permanently from the active nearshore, beach or inlet shoal system.This dredged material shall be disposed of on the ocean beach or shallow activenearshore area where it is environmentally acceptable and compatible with otheruses of the beach.
(i) Subject to subsections (h1) and (h2) of this section, allmaterials excavated pursuant to such permit, regardless of where placed, shallbe encased or entrapped in such a manner as to minimize their moving back intothe affected water.
(j) None of the provisions of this section shall relieve anyriparian owner of the requirements imposed by the applicable laws andregulations of the United States.
(k) Any person, firm, or corporation violating the provisions ofthis section shall be guilty of a Class 2 misdemeanor. Each day's continuedoperation after notice by the Department to cease shall constitute a separateoffense. A notice to cease shall be served personally or by certified mail.
(l ) The Secretary may, either before or after the institutionof proceedings under subsection (k) of this section, institute a civil actionin the superior court in the name of the State upon the relation of theSecretary, for damages, and injunctive relief, and for such other and furtherrelief in the premises as said court may deem proper, to prevent or recover forany damage to any lands or property which the State holds in the public trust,and to restrain any violation of this section or of any provision of a dredgingor filling permit issued under this section. Neither the institution of the actionnor any of the proceedings thereon shall relieve any party to such proceedingsfrom the penalty prescribed by this section for any violation of the same.
(m) This section shall apply to all persons, firms, orcorporations, their employees, agents, or contractors proposing excavation orfilling work in the estuarine waters, tidelands, marshlands and State‑ownedlakes within the State, and the work to be performed by the State government orlocal governments. Provided, however, the provisions of this section shall notapply to the activities and functions of the Department and local healthdepartments that are engaged in mosquito control for the protection of thehealth and welfare of the people of the coastal area of North Carolina asprovided under G.S. 130A‑346 through G.S. 130A‑349. Provided,further, this section shall not impair the riparian right of ingress and egressto navigable waters.
(n) Within the meaning of this section:
(1) "State‑owned lakes" include man‑madeas well as natural lakes.
(2) "Estuarine waters" means all the waters of theAtlantic Ocean within the boundary of North Carolina and all the waters of thebays, sounds, rivers, and tributaries thereto seaward of the dividing linebetween coastal fishing waters and inland fishing waters agreed upon by theDepartment and the Wildlife Resources Commission, within the meaning of G.S.113‑129.
(3) "Marshland" means any salt marsh or other marshsubject to regular or occasional flooding by tides, including wind tides(whether or not the tidewaters reach the marshland areas through natural orartificial watercourses), provided this shall not include hurricane or tropicalstorm tides. Salt marshland or other marsh shall be those areas upon which growsome, but not necessarily all, of the following salt marsh and marsh plantspecies: Smooth or salt water Cordgrass (Spartina alterniflora) , BlackNeedlerush (Juncus roemerianus) , Glasswort (Salicornia spp.) , Salt Grass(Distichlis spicata) , Sea Lavender (Limonium spp.) , Bulrush (Scirpus spp.) ,Saw Grass (Cladium jamaicense) , Cattail (Typha spp.) , Salt‑Meadow Grass(Spartina patens) , and Salt Reed‑Grass (Spartina cynosuroides) . (1969, c. 791, s. 1; 1971, c. 1159, s. 6; 1973, c. 476, s. 128; c.1262, ss. 28, 86; c. 1331, s. 3; 1975, c. 456, ss. 1‑7; 1977, c. 771, s.4; 1979, c. 253, ss. 1, 2; 1983, c. 258, ss. 1‑3; c. 442, s. 2; 1987, c.827, s. 105; 1989, c. 727, s. 107; 1993, c. 539, s. 844; 1994, Ex. Sess., c.24, s. 14(c); 1993 (Reg. Sess., 1994), c. 777, s. 6(a), (b); 1995, c. 509, s.55.1(a)‑(c); 2000‑172, ss. 3.1, 3.2; 2002‑126, ss. 29.2(h)‑(j).)
§ 113‑229. Permits to dredge or fill in orabout estuarine waters or State‑owned lakes.
(a) Except as hereinafter provided before any excavation orfilling project is begun in any estuarine waters, tidelands, marshlands, orState‑owned lakes, the party or parties desiring to do such shall firstobtain a permit from the Department. Granting of the State permit shall notrelieve any party from the necessity of obtaining a permit from the UnitedStates Army Corps of Engineers for work in navigable waters, if the same isrequired. The Department shall continue to coordinate projects pertaining tonavigation with the United States Army Corps of Engineers.
(b) All applications for such permits shall include a plat ofthe areas in which the proposed work will take place, indicating the location,width, depth and length of any proposed channel, the disposal area, and a copyof the deed or other instrument under which the applicant claims title to theproperty adjoining the waters in question, (or any land covered by waters),tidelands, or marshlands, or if the applicant is not the owner, then a copy ofthe deed or other instrument under which the owner claims title plus writtenpermission from the owner to carry out the project on his land.
(c) In lieu of a deed or other instrument referred to insubsection (b) of this section, the agency authorized to issue such permits mayaccept some other reasonable evidence of ownership of the property in questionor other lawful authority to make use of the property.
(c1) The Coastal Resources Commission may, by rule, designatecertain classes of major and minor development for which a general or blanketpermit may be issued. In developing these rules, the Commission shall considerall of the following:
(1) The size of the development.
(2) The impact of the development on areas of environmentalconcern.
(3) How often the class of development is carried out.
(4) The need for on‑site oversight of the development.
(5) The need for public review and comment on individualdevelopment projects.
(c2) General permits may be issued by the Commission as rulesunder the provisions of G.S. 113A‑118.1. Individual development carriedout under the provisions of general permits shall not be subject to themandatory notice provisions of this section. The Commission may imposereasonable notice provisions and other appropriate conditions and safeguards onany general permit it issues. The variance, appeals, and enforcement provisionsof this Article shall apply to any individual development projects undertakenunder a general permit.
(d) An applicant for a permit, other than an emergency permit,shall send a copy of his application to the owner of each tract of riparianproperty that adjoins that of the applicant. The copy shall be served bycertified mail or, if the owner's address is unknown and cannot be ascertainedwith due diligence or if a diligent but unsuccessful effort has been made toserve the copy by certified mail, by publication in accordance with the rulesof the Commission. An owner may file written objections to the permit with theDepartment for 30 days after he is served with a copy of the application. Inthe case of a special emergency dredge or fill permit the applicant mustcertify that he took all reasonable steps to notify adjacent riparian owners ofthe application for a special emergency dredge and fill permit prior tosubmission of the application. Upon receipt of this certification, theSecretary shall issue or deny the permit within the time period specified in(e) of this section, upon the express understanding from the applicant that hewill be entirely liable and hold the State harmless for all damage to adjacentriparian landowners directly and proximately caused by the dredging or fillingfor which approval may be given.
(e) Applications for permits except special emergency permitapplications shall be circulated by the Department among all State agenciesand, in the discretion of the Secretary, appropriate federal agencies havingjurisdiction over the subject matter which might be affected by the project sothat such agencies will have an opportunity to raise any objections they mighthave. The Department may deny an application for a dredge or fill permit uponfinding: (1) that there will be significant adverse effect of the proposeddredging and filling on the use of the water by the public; or (2) that therewill be significant adverse effect on the value and enjoyment of the propertyof any riparian owners; or (3) that there will be significant adverse effect onpublic health, safety, and welfare; or (4) that there will be significantadverse effect on the conservation of public and private water supplies; or (5)that there will be significant adverse effect on wildlife or fresh water,estuarine or marine fisheries. In the absence of such findings, a permit shallbe granted. Such permit may be conditioned upon the applicant amending hisproposal to take whatever measures are reasonably necessary to protect thepublic interest with respect to the factors enumerated in this subsection.Permits may allow for projects granted a permit the right to maintain suchproject for a period of up to 10 years. The right to maintain such projectshall be granted subject to such conditions as may be reasonably necessary toprotect the public interest. The Coastal Resources Commission shall coordinatethe issuance of permits under this section and G.S. 113A‑118 and thegranting of variances under this section and G.S. 113A‑120.1 to avoidduplication and to create a single, expedited permitting process. The CoastalResources Commission may adopt rules interpreting and applying the provisionsof this section and rules specifying the procedures for obtaining a permitunder this section. Maintenance work as defined in this subsection shall be limitedto such activities as are required to maintain the project dimensions as foundin the permit granted. The Department shall act on an application for permitwithin 75 days after the completed application is filed, provided theDepartment may extend such deadline by not more than an additional 75 days ifnecessary properly to consider the application, except for applications for aspecial emergency permit, in which case the Department shall act within twoworking days after an application is filed, and failure to so act shallautomatically approve the application.
(e1) The Secretary is empowered to issue special emergency dredgeor fill permits upon application. Emergency permits may be issued only whenlife or structural property is in imminent danger as a result of rapid recenterosion or sudden failure of a man‑made structure. The Coastal ResourcesCommission may elaborate by rule upon what conditions the Secretary may issue aspecial emergency dredge or fill permit. The Secretary may condition the emergencypermit upon any reasonable conditions, consistent with the emergency situation,he feels are necessary to reasonably protect the public interest. Where anapplication for a special emergency permit includes work beyond which theSecretary, in his discretion, feels necessary to reduce imminent dangers tolife or property he shall issue the emergency permit only for that part of theproposed work necessary to reasonably reduce the imminent danger. All furtherwork must be applied for by application for an ordinary dredge or fill permit.The Secretary shall deny an application for a special dredge or fill permitupon a finding that the detriment to the public which would occur on issuanceof the permit measured by the five factors in G.S. 113‑229(e) clearlyoutweighs the detriment to the applicant if such permit application should bedenied.
(f) A permit applicant who is dissatisfied with a decision onhis application may file a petition for a contested case hearing under G.S.150B‑23 within 20 days after the decision is made. Any other person whois dissatisfied with a decision to deny or grant a permit may file a petitionfor a contested case hearing only if the Coastal Resources Commissiondetermines, in accordance with G.S. 113A‑121.1(c), that a hearing isappropriate. A permit is suspended from the time a person seeks administrativereview of the decision concerning the permit until the Commission determinesthat the person seeking the review cannot commence a contested case or theCommission makes a final decision in a contested case, as appropriate, and noaction may be taken during that time that would be unlawful in the absence ofthe permit.
(g) G.S. 113A‑122 applies to an appeal of a permitdecision under subsection (f).
(h) Repealed by Session Laws 1987, c. 827, s. 105.
(h1) Except as provided in subsection (h2) of this section, allconstruction and maintenance dredgings of beach‑quality sand may beplaced on the affected downdrift ocean beaches or, if placed elsewhere, anequivalent quality and quantity of sand from another location shall be placedon the downdrift ocean beaches.
(h2) Clean, beach quality material dredged from navigationalchannels within the active nearshore, beach or inlet shoal systems shall not beremoved permanently from the active nearshore, beach or inlet shoal system.This dredged material shall be disposed of on the ocean beach or shallow activenearshore area where it is environmentally acceptable and compatible with otheruses of the beach.
(i) Subject to subsections (h1) and (h2) of this section, allmaterials excavated pursuant to such permit, regardless of where placed, shallbe encased or entrapped in such a manner as to minimize their moving back intothe affected water.
(j) None of the provisions of this section shall relieve anyriparian owner of the requirements imposed by the applicable laws andregulations of the United States.
(k) Any person, firm, or corporation violating the provisions ofthis section shall be guilty of a Class 2 misdemeanor. Each day's continuedoperation after notice by the Department to cease shall constitute a separateoffense. A notice to cease shall be served personally or by certified mail.
(l ) The Secretary may, either before or after the institutionof proceedings under subsection (k) of this section, institute a civil actionin the superior court in the name of the State upon the relation of theSecretary, for damages, and injunctive relief, and for such other and furtherrelief in the premises as said court may deem proper, to prevent or recover forany damage to any lands or property which the State holds in the public trust,and to restrain any violation of this section or of any provision of a dredgingor filling permit issued under this section. Neither the institution of the actionnor any of the proceedings thereon shall relieve any party to such proceedingsfrom the penalty prescribed by this section for any violation of the same.
(m) This section shall apply to all persons, firms, orcorporations, their employees, agents, or contractors proposing excavation orfilling work in the estuarine waters, tidelands, marshlands and State‑ownedlakes within the State, and the work to be performed by the State government orlocal governments. Provided, however, the provisions of this section shall notapply to the activities and functions of the Department and local healthdepartments that are engaged in mosquito control for the protection of thehealth and welfare of the people of the coastal area of North Carolina asprovided under G.S. 130A‑346 through G.S. 130A‑349. Provided,further, this section shall not impair the riparian right of ingress and egressto navigable waters.
(n) Within the meaning of this section:
(1) "State‑owned lakes" include man‑madeas well as natural lakes.
(2) "Estuarine waters" means all the waters of theAtlantic Ocean within the boundary of North Carolina and all the waters of thebays, sounds, rivers, and tributaries thereto seaward of the dividing linebetween coastal fishing waters and inland fishing waters agreed upon by theDepartment and the Wildlife Resources Commission, within the meaning of G.S.113‑129.
(3) "Marshland" means any salt marsh or other marshsubject to regular or occasional flooding by tides, including wind tides(whether or not the tidewaters reach the marshland areas through natural orartificial watercourses), provided this shall not include hurricane or tropicalstorm tides. Salt marshland or other marsh shall be those areas upon which growsome, but not necessarily all, of the following salt marsh and marsh plantspecies: Smooth or salt water Cordgrass (Spartina alterniflora) , BlackNeedlerush (Juncus roemerianus) , Glasswort (Salicornia spp.) , Salt Grass(Distichlis spicata) , Sea Lavender (Limonium spp.) , Bulrush (Scirpus spp.) ,Saw Grass (Cladium jamaicense) , Cattail (Typha spp.) , Salt‑Meadow Grass(Spartina patens) , and Salt Reed‑Grass (Spartina cynosuroides) . (1969, c. 791, s. 1; 1971, c. 1159, s. 6; 1973, c. 476, s. 128; c.1262, ss. 28, 86; c. 1331, s. 3; 1975, c. 456, ss. 1‑7; 1977, c. 771, s.4; 1979, c. 253, ss. 1, 2; 1983, c. 258, ss. 1‑3; c. 442, s. 2; 1987, c.827, s. 105; 1989, c. 727, s. 107; 1993, c. 539, s. 844; 1994, Ex. Sess., c.24, s. 14(c); 1993 (Reg. Sess., 1994), c. 777, s. 6(a), (b); 1995, c. 509, s.55.1(a)‑(c); 2000‑172, ss. 3.1, 3.2; 2002‑126, ss. 29.2(h)‑(j).)
