Friends of Hatteras Island Nat. Historic Maritime Forest Land Trust for Preservation, Inc. v. Coastal Resources Com'n of State

• Citation: 117 N.C.App. 556,452 S.E.2d 337
• Decision Date: 17 January 1995
• Docket Number: No. 941SC289,941SC289
• Court: Court of Appeal of North Carolina (US)
• Parties: FRIENDS OF HATTERAS ISLAND NATIONAL HISTORIC MARITIME FOREST LAND TRUST FOR PRESERVATION, INC., Petitioner, v. COASTAL RESOURCES COMMISSION OF the STATE of North Carolina and Cape Hatteras Water Association, Inc., Respondents.

Page 337

452 S.E.2d 337

117 N.C.App. 556

FRIENDS OF HATTERAS ISLAND NATIONAL HISTORIC MARITIME FOREST

LAND TRUST FOR PRESERVATION, INC., Petitioner, v. COASTAL RESOURCES COMMISSION OF the STATE of North Carolina and Cape Hatteras Water Association, Inc., Respondents.

No. 941SC289.

Court of Appeals of North Carolina.

Jan. 17, 1995.

Maupin Taylor Ellis & Adams, P.A. by Amos C. Dawson, III and Sean Callinicos, Raleigh, and Sharpe, Michael, Outten & Graham by Robert L. Outten, Kitty Hawk, for respondent-appellant Cape Hatteras Water Ass'n.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Robin W. Smith, Raleigh, for respondent North Carolina Coastal Resources Com'n.

THOMPSON, Judge.

Respondents Cape Hatteras Water Association (CHWA) and North Carolina Coastal Resources Commission (CRC) appeal from an order entered by Judge William C. Griffin, Jr. on 28 October 1993 which revoked the issuance of a Coastal Area Management Act (CAMA) Major Development Permit No. 152-91 to CHWA.

The issue presented by this appeal is whether the trial court erred in reversing a permit which the CRC had granted to CHWA to place nine wells, together with associated underground utilities and access roads, on state-owned lands in the Buxton Woods Reserve. Buxton Woods, located on Cape Hatteras Island in Dare County, is the largest remaining maritime forest in North Carolina. In 1987 the State began a program of acquisition of lands in Buxton Woods. Shortly thereafter, in April 1988, CRC created a State Coastal Reserve program that encompasses the existing Estuary Sanctuary components (Zeke's Island, Rachel Carson, Currituck Banks and Masonboro Island) and also includes Bermuda Island and Buxton Woods. See 15A N.C.Admin.Code tit. 15A, r.070.0100-.0105 (April 1988). ¹ In 1989, two years after the State began its program of acquisition of Buxton Woods, the legislature established the North Carolina Coastal Reserve by the enactment of part V of the Coastal Area Management Act, N.C.Gen.Stat. § 113A-129.1 through .3 (1989) [Coastal Reserve Statute]. ² The legislature created the North Carolina Coastal Reserve System in recognition of the fact that the coastal area of North Carolina contains a number of important undeveloped natural areas and that "[i]mportant public purposes will be served by the preservation of certain of these areas in an undeveloped state." N.C.Gen.Stat. § 113A-129.1. ³ The system was created "for the purpose of acquiring, improving, and maintaining undeveloped coastal land and water areas in a natural state." N.C.Gen.Stat. § 113A-129.2(a). N.C.Gen.Stat. § 113A-129.2(e) restricts the use of the Reserve primarily for research and education but also allows "[o]ther public uses, such as hunting, fishing, navigation and recreation ... to the extent consistent with these primary uses."

Respondent CHWA is a private, nonprofit corporation which has since 1969 provided the only public water supply to residents of south Hatteras from a well field on a tract which extends 12,000 feet at the west end of Buxton Woods. A second tract is conterminous with the first tract and extends approximately 8,000 feet. A third tract extends approximately 6,200 feet along the National Park Service boundary. The second and third tracts have been identified as future well fields. The aquifer beneath these tracts serves as the sole source of drinking water for the surrounding communities of Avon, Buxton, Frisco and Hatteras, as well as the national seashore recreation area. In 1977, before the State acquired Buxton Woods, the CRC designated CHWA's existing and future well field areas as a "Public Water Supply Well Field Area of Environmental Concern" pursuant to N.C.Gen.Stat. § 113A-113(b), which authorizes the CRC to designate any one or more areas enumerated therein as areas of environmental concern. N.C.Gen.Stat. § 113A-113 (1994); N.C.Admin.Code tit. 07H, r.0406(c)(1) (September 1977) (regulation designating CHWA's well field areas as public water supply well fields). The CRC defines public water supply well fields as "areas of well-drained sands that extend downward from the surface into the shallow ground water table which supplies the public with potable water ... [and which] are confined to a readily definable geographic area...." N.C.Admin.Code tit. 15A, r.07H.0406(a) (September 1977). Development within a Public Water Supply Well Field AEC (1) must be consistent with the minimum standards set forth in N.C.Admin.Code tit. 15A, r.07H.0406(b) and (2) requires a permit from the Commission or its duly authorized agent pursuant to N.C.Gen.Stat. § 113A-118(a) (1994), which states that "every person before undertaking any development in any Area of Environmental Concern shall obtain ... a permit pursuant to the provisions of [Part 4 of Article 7 of CAMA]."

In 1990, out of concern that the existing wellfield had been pumped at or near its capacity, CHWA sought to expand into future well field areas located in the Buxton Woods Coastal Reserve. Since this would entail the drilling of wells in the future well field areas of the Public Well Field AEC, CHWA had to apply to the Department of Environment, Health, and Natural Resources, Division of Coastal Management [DCM], for the issuance of a Major Development Permit to drill wells in the future well field areas. See N.C.Gen.Stat. § 113A-118(d)(1). "Major development" is

any development which requires permission, licensing, approval, certification or authorization in any form from the Environmental Management Commission, the Department of Environment, Health, and Natural Resources ...; or which occupies a land or water area in excess of 20 acres; or which contemplates drilling for or excavating natural resources on land or under water; or which occupies on a single parcel a structure or structures in excess of a ground area of 60,000 square feet.

N.C.Gen.Stat. § 113A-118(d)(1) (emphasis added). ⁴

CHWA's application, filed 30 November 1990, was submitted to nine state and federal agencies for review and comment. DCM Director Roger Schecter reviewed the application, comments, and information collected during evaluation of the application in light of N.C.Gen.Stat. § 113A-120(a)(1)-(10), which sets forth ten findings any one of which, if found by the responsible official or body, requires denial of the permit. In the absence of any such findings under section (a), N.C.Gen.Stat. § 113A-120(b) provides that the permit shall be granted.

DCM Director Schecter made a finding pursuant to N.C.Gen.Stat. § 113A-120(b) that the permit should be issued. Thereafter, CHWA was issued CAMA Major Development Permit no. 152-91 which contained 17 conditions to minimize impacts on maritime forest, wetlands vegetation, and swales. On 14 January 1992 the permit was amended to clarify the conditions in the original permit.

Thereafter, petitioner Friends of Hatteras Island National Historic Maritime Forest Land Trust for Preservation, Inc. (FOHI) filed a third party request for contested hearing on the issuance of the original and amended permits pursuant to N.C.Gen.Stat. § 113A-121.1(b). FOHI is a conservation organization based on Hatteras Island whose stated purpose is to promote responsible choices in the use of the island's natural resources.

In its request for a contested case hearing petitioner alleged, among other things, that the permit decision was inconsistent with the Coastal Reserve Statute, N.C.Gen.Stat. § 113A-129.1-.3, and with the rules adopted by the Department of Environment, Health, and Natural Resources pursuant thereto. By order entered 18 February 1992, T. Erie Haste, Jr., Vice Chairman of the CRC, granted petitioner's request for a contested case hearing on this issue.

Administrative Law Judge Thomas R. West conducted the administrative hearing beginning on 10 August 1992 and concluding on 1 September 1992. Judge West issued a decision recommending issuance of the CAMA permit with minor modifications. The CRC made a final decision in the contested case on 20 November 1992 based on consideration of the hearing record, Judge West's Recommended Decision, and oral arguments by the parties. The CRC's final order issuing the permit was entered on 9 December 1992.

The CRC considered the following issues:

(1) Whether CAMA Permit No. 152-91, which allows construction by the CHWA of nine wells for the production of water, together with the pertinent access and underground utilities, in a portion of the Cape Hatteras Well Field AEC within the Buxton Woods Coastal Reserve is consistent with N.C.G.S. 113A-120 and the applicable state guidelines as applied through N.C.Gen.Stat. § 113A-120(a)(8).

(2) Whether considering the engineering requirements and all economic costs, there is a practicable alternative that would accomplish the overall program purposes with less adverse impact on the public resources (thus requiring denial of the permit under N.C.Gen.Stat. § 113A-120(a)(9)).

(3) Whether the development allowed by Permit No. 152-91 would contribute to cumulative effects which would be inconsistent with applicable CAMA guidelines (thus requiring denial of the permit under N.C.Gen.Stat. § 113A-120(a)(10)). ⁵

In affirming the issuance of the permit, the CRC made the following conclusions of law 3. Withdrawal of water from the aquifer underlying the Buxton Woods Coastal Reserve ... is a traditional use consistent with preservation of the area in an undeveloped state and consistent with the coastal reserve's primary use as a site for research and education. The improvements and alterations allowed by the Permit are consistent with these uses.

4. Withdrawal of water from the aquifer underlying the Buxton Woods Coastal Reserve by the [CHWA] ... is a public use consistent with preservation of the area in an undeveloped state and consistent with the coastal reserve's primary use as a site for research and education, particularly as no other source of public drinking water exists in this area.

5....