North Carolina is fortunate to have numerous and substantial water resources. In recent years, however, there has been increasing pressure on North Carolina's water supplies. Growing urban areas need large amounts of water, agricultural irrigation has increased, industrial development creates new demands, and there is strong demand for recreational uses of water. These often competing interests and the keen private and public interest in environmental protection have caused water law to become a topic of increase prominence. This paper surveys some of the major principles of water law in North Carolina.
Land Ownership Issues
"Reasonable use" means that each riparian owner can take, use, and discharge
surface water so long
as that use does not excessively diminish the quality or quantity of the
water that flows to other riparian owners. All of the riparian landowners
have equal riparian rights, and no one owner can
unreasonably interfere with the reasonable uses of the others. A riparian
owner who uses so much
water that it impairs the reasonable uses of the other owners or who pollutes
the water can be sued
by the adversely affected owners for damages and an injunction to stop the
infringing use. All customary household uses are presumptively reasonable.
Agricultural and industrial uses are only reasonable if
they do not cause unreasonable adverse effects for other riparian owners.
The reasonable use doctrine as applied to groundwater allows a landowner to
withdraw groundwater
for any use on the property, including manufacturing uses and agricultural
irrigation. The courts have applied the reasonable use rule more liberally
to groundwater than to surface water, and any use of groundwater on the
property is presumed reasonable. The groundwater user is only liable to
affected neighbors (e.g. those whose wells go dry) if the water was wasted
or used for some purpose off the
property.
A property owner who causes contamination of groundwater will be liable to
affected neighbors in the
same manner as a polluter of surface water who is liable to other riparian
owners. Most riparian use issues concern the effects on downstream owners.
However, damage can also be done to upstream riparian owners by building a
dam or otherwise obstructing
the natural water flow so that flooding occurs on
upstream land. In such cases, the upstream owner has a cause of action for
trespass against the downstream owner.
If the body of water is man-made, a canal or reservoir for example, the
customary riparian rights may not apply, and the uses by littoral owners can
be limited. For instance, an owner of property on a lake formed by a
hydro-electric dam or on a man-made
canal may have no riparian right to withdraw water or build a dock.
On the other hand, landowners who build ponds on their own property would
continue to have riparian rights in that water.
The same rule of State ownership applies to lands underlying fresh water
bodies that have an outlet to the ocean and would be potentially navigable by
historical sea vessels. In all of the above cases, private property
boundaries extend only to the high
water line or the mean high tide line of the water body.
When the State owns submerged lands, the owner of land adjacent to the water
body still has riparian rights of access to and use of the water and bottoms
(using water for irrigation or building a dock, for example).
Those rights are limited, however, by the requirements of navigation and by
the rights of the public to use the publicly-owned navigable waters and tidal
lands. Other regulations also may apply, including the
requirement to obtain a permit before building docks or piers in coastal
waters.
Submerged lands that do not fall into the above categories, which would
include most land under streams, smaller rivers, and lakes, can be privately
owned. When a private property boundary is described in the
deed as the course or "thread" of a stream, the property line is considered
to run down the middle of the stream. The property line will shift as the
stream slowly changes course. Gradual erosion from one side
and gradual accretion on the other will respectively reduce and increase the
amount of land held by the adjacent owners. If a flood or other unusual
event causes a stream to change course suddenly and dramatically, the
property boundary does not move and will be established at the center of the
old stream bed.
If the body of water that lies over privately owned submerged land can be
navigated by any craft such as a canoe or a raft, then the public has a
permanent right to use the water surface for all purposes of recreation and
commerce, including fishing, whitewater canoeing, etc. It is not clearly
settled whether the public's right to use such water bodies includes the
right to wade on the privately owned stream bed for fishing or other
recreation. When a stream is so small that it is no longer navigable by
smaller craft such as a canoe, there is clearly no public right to wade,
fish, or otherwise use or enter upon the stream.
Similarly, there is no public use right for man-made ponds on private
property. On water bodies over submerged lands owned by the State
(historically navigable waters and tidal waters) the public has a clear
right to navigation, fishing, and other recreation on the water, as well as
the right to use the foreshore the area between the low and high water lines.
There is no public right to travel over private property to obtain access to
streams, lakes, tidal areas or other waters that the public has a right to
use. Likewise, the public cannot generally trespass on private property on
the banks of a stream, river or lake. Under traditional riparian law, the
public had no right to use the dry sand above the high tide mark on coastal
beaches. By custom, however, the public has long been allowed to use the dry
sand between the dunes and ocean in North Carolina and many other states.
With increasing development and public use of beaches, conflicts have
sometimes arisen when property owners have tried to exclude the public from
the dry sand.
In states other than North Carolina, the courts and legislatures have used
various legal approaches to grant the public a formal right to use the dry
sand portion of beaches when private property owners have sought to prevent
such use. The issue has never been fully tested in North Carolina, but it is
likely that the public does have a legal right to make reasonable use of the
dry beach between the dunes and the ocean.
If the higher landowner unreasonably diverts the flow of runoff, increases
the flow, or contaminates the runoff in a way that causes material damage to
the lower landowner, then the lower landowner can bring an action for an
injunction and damages.
A detailed summary of all laws relating to water use and water quality is
beyond the scope of this paper. A general overview of the applicable laws is
set forth below.
The permits establish the levels of contaminants that the point source is
allowed to discharge. What is permissible depends upon numerous factors.
Relatively strict limits are placed on certain toxic substances based upon
the best available technology for eliminating those contaminants. Somewhat
less stringent technology-based discharge limits are placed on other
contaminants. Permit requirements can be further tightened depending upon
the classification of appropriate uses for the receiving water body and
its ambient quality.
Non-point sources are mostly small and dispersed and, therefore, are more
difficult to regulate than point sources. The control of nonpoint sources,
however, may be the most cost-effective means for further improving water
quality. There are now a few mandatory regulations and more numerous
voluntary programs aimed at controlling nonpoint sources. Additional
regulation of non-point sources can be expected, and agriculture will be
one focus for future nonpoint source control programs.
Contamination of surface waters by sediment is currently regulated primarily
by the Sedimentation Pollution Control Act which requires approved erosion
control plans for any land-disturbing activities that will uncover more than
one acre. Timber production and harvest activities are exempt if they are
conducted using established best management practices. Agricultural
production also is exempt from this law, but the prevention of agricultural
erosion and runoff through the adoption of best management practices is
encouraged by the Agricultural Cost Share program, the U.S. Soil Conservation
Service, and other state and federal programs and agencies. Nonetheless, the
exemption provides no protection from liability for off-site damage.
In late 1992, North Carolina adopted new regulations intended to prevent
livestock wastes from entering surface waters. Under the regulations,
any operation confining 100 head of cattle, 75 horses, 250 swine, 1000 sheep,
etc. must file and implement a certified animal waste management plan. The
plans require buffer strips, proper land application of wastes, and other
best management practices to protect water quality. Special attention has
been focused on non-point sources in watersheds that supply public drinking
water. North Carolina law requires local governments to adopt ordinances
limiting the density of development and/or requiring engineered storm water
controls in water supply watersheds.
The law also places additional restrictions on agricultural practices, point
source discharges and other activities in these watersheds.
North Carolina has established public trust funds to help owners pay for the
cleanup of leaks. For non-commercial tanks, the state may pay for the full
cost of environmental cleanup, but not the actual removal of the tank.
Wells are often the conduit for contaminants to reach the groundwater.
For example, chemicals or other contaminants that are stored or mixed near a
wellhead are far more likely to travel down the well pipe than to leach
through the soil to the groundwater. The State regulates well
drillers and requires drillers to register all new wells. The State also has
established technical standards for the construction of wells.
Local governments are now being encouraged to adopt wellhead protection
ordinances that would take further steps to insure that wells are protected
from potential sources of groundwater contamination. North Carolina also
prohibits the disposal of wastes through injection wells. Numerous other
environmental regulations that are not directly focused on water quality are
nevertheless intended to prevent water contamination and other environmental
problems. For example, regulations concerning the disposal of solid waste
and hazardous waste are intended in substantial part to prevent
leaking of waste contaminants to groundwater.
This relatively rapid change has disrupted the expectations of private
property owners. In addition, many wetlands occur in coastal areas where
development pressures have been strong. The controversy is fueled further by
the regulatory difficulty of defining and determining the boundaries of
wetlands.
The U.S. Army Corps of Engineers is the federal agency with primary
responsibility for regulating wetlands, although the EPA, Soil Conservation
Service, U.S. Fish & Wildlife Service, and the individual
states have their own roles and EPA has veto power over Corps decisions to grant permits.
The federal definition of "wetland" uses criteria that focus on the types of
vegetation and soils and the level of the water table. It is clear that a
wetland can be much more than a marsh or swamp. Land that is
saturated with water for as little as seven days during the growing season
may be classified as a wetland if it supports vegetation typically associated
with saturated soils or otherwise performs the functions
characteristic of wetlands.
The Clean Water Act requires permits for the filling or dredging of
wetlands. Filling and dredging have been interpreted broadly to include
virtually any soil-disturbing activity in a wetland. The Corps of Engineers
is the permitting authority. It has issued some blanket permits for small
activities deemed not to have substantial potential for harm to water
quality. Normal farming and forestry activities do not require
permits, but this exemption does not extend to activities designed to drain
or convert a wetland to a different use.
There is substantial debate and litigation over what activities are "normal"
and therefore exempt from permitting. The 1985 Farm Bill included the
"Swampbuster" provision that limits or denies federal agricultural benefits
to anyone damaging a wetland for agricultural production. The procedures for
regulating wetlands may be changed with the reauthorization of
the Clean Water Act in 1996.
In addition to federal regulation, most states, including North Carolina,
either have or are developing their own regulatory programs for wetlands.
North Carolina has some wetlands statutes in place and is developing a
program to classify wetlands. The classification system is intended to
ensure against water degradation through the State's review and approval or
denial of Corps of Engineers permits, under section 401 of the Clean Water Act.
The North Carolina General Assembly also has recently adopted a policy
against substantial new interbasin water transfers. For use of groundwater,
the construction of a well or well system with a design capacity of
100,000 gpd or greater requires an EMC permit. The EMC has the authority to
designate "capacity use areas" in locations where it appears that surface
water or groundwater is or may be overused. In capacity use areas, permits
are required for users of more than 100,000 gallons of water per day and
other use restrictions may apply. There is currently only one designated
capacity use area in North Carolina. It is located primarily in Beaufort
County near the coast in the vicinity of the
Potash Corporation of Saskatchewan phosphate mining facility, which has been a large user of
groundwater.
AREP94-2-July 1994, Revised: March 1996, by Theodore A. Feithshans.
Thanks is expressed to Walter Clark, Ocean and Coastal Law Specialist, UNC
Sea Grant Program, who reviewed an earlier draft of this fact sheet.
This test of navigability by historical sea vessels is not precise. Any
disputes about title to submerged lands that turn on this issue of
navigability must ultimately be resolved by the courts on a case-by-case
basis.
04/16/96
Table of Contents
I.
Riparian Rights
Reasonable
Use
Private and State
Ownership
Public Use
Rights
Water RunoffSurface Water Pollution
Groundwater
Pollution
Wetlands
Regulations
Limits on Water
Use
III.
ConclusionI. Riparian Rights
Riparian rights are the rights of landowners to use water that is on or
adjacent to their property. Landowners have riparian rights only if their
land touches some body of water. There is no right to go
over the property of others to take water, even if that intervening property
is only a narrow
strip such as a road or railroad. Landowners have rights in the groundwater
underneath their property
that are similar to surface water riparian rightsReasonable
Use
The guiding principle of riparian rights in North Carolina (and most other
eastern states) is "reasonable
use." Owners of property adjacent to a natural body of water have the right
to make reasonable
use of the water. (Such property owners are referred to generally in this
paper as "riparian owners"
although the correct technical term for owners of property adjacent to ocean
or estuarine waters is
"littoral owners.") Similar reasonable use rights also apply to ground-
water.Land Ownership Issues
Private and State
Ownership
Questions often arise concerning the ownership of the submerged lands under
rivers and lakes and the
tidal lands of the oceans, sounds and estuaries. Under North Carolina law,
all land under saltwater
bodies, lands subject to the ebb and flow of the tide, and land under water
that is subject to
the influx of saltwater is owned by the State "in trust" for the public.
Such lands cannot be privately owned, with the exception of certain limited
grants and sales of these lands that the State has made in the past.
Return to the MenuPublic Use
Rights
Although riparian owners have certain rights to use water, they do not
actually own the water itself. All surface and ground waters are legally
"waters of the State." The water, plus the fish and other aquatic life
belongs to the State. (There is an exception for fish in private ponds if
the fish cannot escape to or enter from public fishing waters.) Even when
all of the submerged land under a water body belongs to private owners, the
State owns the water, although the riparian owners continue to enjoy their
riparian rights. Water Runoff
Surface drainage (i.e. storm water runoff) creates water law issues. The
laws of nature dictate that storm water will run downhill, and a property
reasonable use of the land, which may necessarily cause some changes in the
runoff. II. Statutory water law issues
The above concepts of water law and riparian rights are mostly traditional
legal doctrines. Like other property rights, riparian rights are not
absolute and numerous federal, state and local statutes, regulations, and
ordinances may limit or modify the rights. For instance, some regulations
restrict high capacity uses of surface and ground water. Most importantly,
there are numerous regulations designed to control or prevent water pollution.
Surface Water Pollution
Point Sources
"Point sources" of water pollution generally are clearly established points
of wastewater discharge into the surface waters. The most common point
sources are the outfalls from industrial plants and from public wastewater
treatment facilities. The federal Clean Water Act requires that all point
source dischargers obtain permits. North Carolina has authority delegated
from the EPA to administer the state's permit program. Non-point Sources
"Non-point sources" are all of the man-made sources of water contamination
that are not point sources. These nonpoint sources are widely diverse and
often difficult to identify as specific sources of water quality problems.
They include, among others, storm water runoff from roads and urban areas,
soil erosion from development, logging and agricultural activities, leaks or
overflows from private septic systems, irrigation backflows, and pesticide
and fertilizer runoff from agricultural and domestic uses and other uses like
golf courses. Groundwater
Pollution
Over half of North Carolina's population obtains its drinking water from
groundwater. One of the main sources of groundwater contamination is leaking
underground storage tanks (USTs). New and existing commercial USTs must be
registered, include devices both to prevent and detect leaks, and comply with
substantial testing and reporting regulations. Tanks for home heating oil
and farm fuel and heating oil tanks under 1100 gallons are not regulated as
commercial tanks. If any UST has leaked, even a non-commercial tank, then
the owner is responsible for removing or repairing the tank and cleaning up
the contamination. Return to the MenuWetlands
Regulations
Environmental regulation of wetlands has been controversial. In the past 30
years, the perception of wetlands has changed from that of useless areas to
be drained and filled to that of critical ecological resources which are
valuable in their own right and deserving of preservation. Limits on Water
Use
Any withdrawal of 1,000,000 gallons per day (gpd) or more of surface or
ground water requires registration with the North Carolina Environmental
Management Commission (EMC). The same registration requirement applies for
any transfer of 1,000,000 gpd from one river basin to another. III. Conclusion
This paper is intended to provide an overview of water law in North Carolina
and to make individuals aware of legal issues that may affect them. It is
not a comprehensive statement of the law, and it is not a substitute for the
advice of an attorney. Anyone with questions or concerns about specific
legal issues or involved in a legal dispute should consult an attorney.
Questions about water quality regulations may also be directed to any
regional office of the North Carolina Division of Environmental Management.
* Allain C. Andry, IV is now an attorney with Robinson, Bradshaw, and Hinson, P.A., in Charlotte, North Carolina
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