By Jeannie Faris and John Tibbetts 



To watch a shellfisherman rake the 

 estuarine mud for clams or tong oysters 

 from their beds, it would seem he has no 

 expenses other than the energy and 

 equipment needed for the task. 



This is not necessarily true. Every 

 year, tidal farmers who work private plots 

 pay the state $5 an acre for a bottom lease 

 or $100 to $500 per acre of water column. 



A few miles away, a marina owner 

 leases out dock slips on state-owned wa- 

 ters. If the shellfisherman pays for exclu- 

 sive use of these waters, surely he does 

 too. 



Wrong again. Marinas pay the state 

 nothing for this privilege. 



The shellfish leases aren't costly, 

 particularly for bottomlands, but environ- 

 mentalists say the principle of charging 

 rent to use public trust land and water is 

 important. If aquaculturists must pay, 

 then so should other users. 



"If you're going to require leases for 

 aquaculture, you should have them for 

 docks and marinas," says David Farren, 

 attorney with the Southern Environmen- 

 tal Law Center. "Docks and marinas have 

 more of an environmental impact than 

 aquaculture." 



The North Carolina court system 

 recently gave teeth to Farren' s argument, 

 at least for marinas. A major court- 

 ordered overhaul is about to change the 

 way trust areas are managed for these 

 exclusive, for-profit uses. 



North Carolina is poised to become 

 the fourth state in the Southeast — join- 

 ing Mississippi, Florida and Virginia — 

 to charge marinas for the water they oc- 

 cupy. About half of the nation's coastal 

 states have similar policies. 



Lease programs for aquaculturists 

 and other private users of public trust 

 property are in place in 27 states, includ- 



ing all coastal states, says P.A. 

 Wojciechowski, director of North 

 Carolina's Submerged Lands Program. 

 These users generally pay one-time fees, 

 yearly rents, percentages of gross receipts 

 or some combination. 



North Carolina Marinas 



North Carolina has more public trust 

 waters than most states, and competing 

 demands to use them are rising like high 



tide on a full moon. Against this back- 

 drop, the state is proposing a 10-cent fee 

 per square foot on marinas that occupy 

 this public property. 



The fee, however, is a temporary fix 

 to satisfy recent court rulings and will 

 probably be revisited by the Legislature, 

 says Joe Henderson, deputy director of 

 the State Property Office. 



He explains how the issue has un- 

 folded in North Carolina. 



The Department of Administration 

 — charged with managing the state's 

 submerged lands — has always ex- 

 empted marinas and docks from a state 

 law requiring for-profit, exclusive users 

 of public trust areas to pay fair market 

 value. The rationale was that they had 

 riparian rights to the water as owners of 

 waterfront property. As such, marinas 

 weren't expected to apply for easements 

 or pay the associated fees to use these 

 waters. An easement is a land transfer 

 recognizing, in these cases, a right to 

 build docks on state-owned waters. 

 It can be revoked. 



The courts, however, called the 

 state's hand on this policy last year. 



The proposed fees are a reply to two 

 court cases — including a Sept. 7, 1993, 

 ruling by the N.C. Court of Appeals — 

 that found North Carolina was not fol- 

 lowing the letter of its own law. One case 

 involved a proposed Black Rock marina 

 on the Chowan River; the other, a major 



dredge-and-fill permit to build a marina 

 on Smith Creek in Oriental. 



"The court case and the administra- 

 tive law judge said that the riparian right 

 is an individual right," Henderson says. 

 "So if I own land that fronts on the river 

 or sound, then I have the right of access 

 to deep water. It doesn't mean that I have 

 the right to build a marina or boat yard or 

 anything else out there to provide access 

 to other people." 



In other words, riparian rights aren't 

 good enough for marinas. The loophole 

 must be closed to these for-profit users, 

 who will be required to get easements 

 and pay rent. 



Two newly proposed marinas have 

 become the litmus tests for both. One is 

 an 80-slip marina proposed for Choco- 

 winity Bay in Beaufort County that could 

 eventually be expanded to 250 slips. The 

 other is a 12-slip marina proposed by a 

 property owners association in Wrights- 

 ville Beach. 



The city of Wilmington is also seek- 

 ing an easement to build a public dock on 

 the Cape Fear River, but it would be ex- 

 empted from charges as a governmental 

 entity. 



Traditionally, environmentalists have 

 trumpeted public trust fees as essential to 

 state stewardship of its natural resources. 

 But Farren has taken issue with the price 

 offered by the state. It's too low, he says. 



North Carolina is poised 



to become the fourth 

 state in the Southeast — 



joining Mississippi, 

 Florida and Virginia — 

 to charge marinas for 

 the water they occupy. 



"An easement at 10 cents a square 

 foot per year simply does not reflect fair 

 market value for a marina where slips 

 can be rented for a multiple of that figure 

 per month," he says. 



State property officials arrived at the 

 fee after surveying similar charges by 

 Texas, Florida and Ohio. Florida charges 

 developers 10 cents a square foot each 

 year. Texas charges 20 cents for every 

 square foot of water covered by docks 



Continued 



on State-Owned Waters: 

 Cracks Down on Marinas 



COASTWATCH 1 3 



