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Riparian Rights: What Are They? What Are Their Limits?

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Riparian Rights: What Are They? What Are Their Limits? Riparian Rights: What Are They? What Are Their Limits? Residing on the waterfront can offer many however, that the sounds and major rivers in amenities a pleasant view of boats and birds eastern North Carolina are navigable. making their way along the shore; a fresh seafood dinner recently caught by casting line What Is Riparian Land? or net into adjacent waters; a boat tied to a pier Riparian land is land that borders on a providing easy access to river, sound or sea; watercourse. The land must be in actual con- or, a quick swim on a hot summer afternoon. tact with the water; mere proximity to the water These amenities are often thought of as rights without actual contact is insufficient, For exam- which naturally extend from the ownership of ple, property would not be riparian where a waterfront property. They are generally valued publiciy owned highway runs between the land by the property owner and usually the property and the water. If you are the owner of property to which they are attached demands a higher which is in actual contact with the water, you value when sold. are a riparian owner and you are entitled to Which of these waterfront amenities are ac- certain riparian rights. These rights may be tual rights that if threatened will invoke legal freely exercised within their legal limits, protection? This is a question which will be fre- quently asked as competition for waterfront Your Riparian Rights property and competition for the use of the water itself increases. The very amenities which Before discussing riparian rights in par- attract people to the water's edge a pleasant ticular, it will be helpful to understand some view; access to deep water; swirnrning, fishing general principles which work to effect these and other recreational activities could be rights. First, all navigable waters of the United threatened by overuse. States are subject to the authority of the federal government in respect to the protection of Legally Protected Rights commerce and navi gati o n. Riparian owners hold their rights in navigable water subject to There are legally protected rights accorded this power. A riparian owner is not allowed to to waterfront property owners. These rights, exercise a right to the extent that it is found to called riparian rights, are considered a part of unreasonably interfere with navigation. For ex- an owner's estate in the land and are treated as ample, a pier which eliminates navigation in an property rights. They must, however, coexist with rights held by the public and with the rights otherwise navigable stream is not allowed. of other waterfront property owners. A clear Second, the state may reasonably regulate, subject to the paramount authority of the understanding of riparian rights and their limits can help waterfront owners define their expec- federal government discussed above, the exer- cise of riparian rights. Any regulation which tations while enjoying the advantages offered destroys a riparian owner's rights would be by our state's waters. found unreasonable. A regulation which limits use but which can be found to benefit the Na vig ability health, safety and welfare of the general public, This publication pertains to riparian owners will generally be deemed reasonable. along navigable water bodies, Navigability in Finally, all lands lying beneath navigable North Carolina, from a legal standpoint, is not waters in North Carolina are held in trust by the clearly defined. It is generally safe to assume, state for the benefit of the general public. The state may not convey ownership of this land, not even to riparian owners. The state may, however, grant to adjoining riparian owners easements in lands covered by navigable waters for any purpose it deems proper, again only if the federal interest in navigation is protected. Access to Deep Water One of the chief advantages of owning waterfront property is the access it can provide to navigable water. Access to navigable or "deep water" is generally desired for boating purposes although some people enjoy the aesthetic and fishing advantages which deep water access can offer. In North Carolina a riparian owner has the right of access to deep water. Access may be accomplished by pier, wharf, marina, channel, or by simply casting off from the shoreline. The right of access, however, is tempered by en- vironmental and other public safeguards. Many of the safeguards are designed to protect the fragile environments of coastal wetlands and shallow water areas which often must be traversed by a riparian owner to reach the navigable water, Other safeguards are designed to protect the deep water access rights of adjacent riparian owners, the public's right of navigation and recreation, and the right of fishermen to make reasonable use of Once the boundaries of the riparian area shellfish beds leased from the state. have been determined, regulations further re- quire that offshore structures be set back fif- Restrictions to Use of Offshore Areas teen feet from adjacent riparian property lines as extended to deep water. This rule is To protect the access rights of adjacent property owners, methods have been designed to prevent structure crowding crowding which could hinder access. developed for defining which areas may be used by riparian owners for offshore construc- tion. These safeguards are designed to prevent piers and similar structures from being con- structed in such a way as to unreasonably in- terfere with the access rights of others. By statute, the state of North Carolina limits the offshore buildable area avaiiable to the riparian owner to only the front of the riparian tract. Regulatory standards further provide that areas of riparian access are to be determined by drawing a line along the channel at deep water in front of the properties, then by drawing a line perpendicular to the line of the channel so that it intersects with the shore at the point the upland property line meets the water' s edge. Riparian owners often mistakenly extend their property boundaries in a straight line from A pier or similar structure may be placed upland lines. The correct and incorrect cioser than fifteen feet to an adjoining property methods are illustrated below for a variety of line only when; ! there is a written agreement differently shaped shorelines, from the adjacent owner giving consent; or ! adjoining neighbors are jointly constructing a is determined that the excavation will have no pier. significant adverse impact on fishery It is the generai policy in North Carolina that resources, water quality or adjacent wetland. piers and other offshore structures should be Piers constructed over marsh may not ex- designed in a manner which will minimize ad- ceed six feet in width. This is to prevent the verse effects on navigation and the public use potential adverse effects of shading and the of water in general. Because of this policy, possibility of killing underlying marsh vegeta- standards exist which define the waterward tion. Platforms or "T" sections at the waterward boundary of the riparian offshore construction end, although not restricted to these dimen- area. For example, piers are not allowed to ex- sions, may not have a total area of more than tend beyond the general pier lines for the same 500 square feet. shoreline and in no case can a pier extend more than one-third of the width of a natural water body or man-made canal or basin. Restrictions to Protect Private Shellfish Leases Regulations now require that all new shellfish leases be located at least 100 feet Riparian owners should also note that pier waterward of a developed shoreline, unless the alignment along federally maintained channels owner of the shoreline grants the lessee written Intracoastal waterway for example! must permission to locate the lease at a closer point. meet the U.S. Army Corps of Engineers District This set-off requirement is designed to prevent guidelines. leases from infringing on the rights of adjacent riparian owners. However, to protect the Restrictions to Safeguard the Environment shellfish ieaseholder, regulations also require that any riparian owner constructing a dock or To protect important and fragile wetland and pier provide notice to the owner of any part of a shallow water systems, the riparian owner, in shellfish franchise or lease over which the devising a means of achieving deep water proposed dock or pier would extend. Docks or access, must adhere to several regulatory piers which are found to significantly interfere safeguards. Navigation channels, canals, and with shellfish leases may be disallowed. boat basins may not be placed in a primary nursery area. Nursery areas are those locations Accretion and Erosion where young finfish and crustaceans spend a major portion of their early lives. Because Accretion is the addition of soil to land by these areas are necessary for the early growth gradual, natural deposits. Accreted land in and development of many of North Carolina's North Carolina becomes the property of the ad- important seafood species, they are classified jacent riparian owner. This includes land by the North Carolina Division of Marine naturally accreted as a result of the erection of Fisheries as areas needing special attention. any pier, jetty, or breakwater. Land created ar- Navigation channels, canals and boat basins tificially, however, from soil fill material! being must also avoid highly productive shellfish placed below the mean high water mark, beds, beds of submerged vegetation and becomes the property of the state. Recall that significant areas of coastal wetland. Only in North Carolina all land below mean high narrow fringes of coastal wetland may be ex- water is held in trust for the general public and cavated for access purposes and then only if it any taking of this property by other than natural processes, subjects the property to state own- and other forms of recreation.
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