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. ership. The state may, in some instances, grant As waterfront development continues, easements to artificially filled properties. For riparian property owners will find it increasingly example, a riparian owner, reclaiming land lost important to know and understand their to erosion in the previous year, is generally riparian rights, Those rights which are part of given an easement to that property. the owner's estate in the land primarily the Because shoreline erosion is often a right of access to navigable water and the right problem for riparian owners, particularly along to claim naturally accreted land are legally eastern North Carolina's wide rivers and protected rights as long as they are exercised sounds, it sometimes becomes necessary to within their established limit, A riparian take action to protect property. This is property owner has the power to prohibit un- generally accomplished by placing bulkheads reasonable interference with these rights. Con- usually a vertical wall made of wood, concrete versely, a riparian owner may not make an un- or steel! or rip-rap usually large rocks or other reasonable use of the water that interferes with: hard material! along the shoreline. The right to ! another riparian proprietor's reasonable protect riparian property from erosion is ac- use of the water; or ! the exercise of a public cepted in North Carolina. This right, however, right to use the water, Other rights such as the does not extend to the oceanfront where hard right to fish, swim, etc., are general rights which erosion control structures can damage or the riparian owner must share equally with the destroy the public beach. public, The placement of bulkheads or rip-rap material must, like other waterfront construc- Appendix tion, meet environmental safeguards. For ex- The riparian owner should be aware that any arnple, bulkheads and rip-rap material must construction along the waterfront in the coastal usually be placed landward of significant area could require a Coastal Area Manage- waterfront marsh fringes. This allows the ment Act permit. For information on permit re- marsh to continue as an important component quirernents, riparian owners should contact the of the water system. Office of Coastal Management, P.O. Box 27687, Raleigh, N.C. 27611-7687, 919/733- Other Riparian Rights 2293. In North Carolina a riparian owner has a right For information regarding primary nursery to the recreational and scenic use and enjoy- areas or shellfish bed leasing, the riparian ow- ment of the water bordering the riparian ner should contact the N. C. Division of Marine property. The difference between these Fisheries, P.O. Box 769, Morehead City, N.C. general rights and the rights discussed above, 28557-0769, 919/726-7021. is that these rights are shared equally with the For information regarding pier alignment public. For instance, the ownership of land along federally maintained channels, the along navigable waters does not confer on its riparian owner should contact the U.S, Army owner the exclusive right to fish in the offshore Corps of Engineers, Regulatory Functions waters. The riparian owner has a right to fish Branch, P.O. Box 1890, Wilrnington, N.C. 28402 but it is shared with all members of the general 91 9/343-4631, public. The same is true for swimming, skiing Walter Clark

105 1911 Building North Carolina State University Box 8605 Raleigh, NC 27695-8605

ONAL~E'I GRA'iT 0EPg'IT PELLI l<,R;,ny. VRI,tf/t,RR,'ilR'i .