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Hurricane Matthew – Emergency Permits After North Carolina State of Emergency

| Amy P. Wang Amy P. Wang

UPDATE 10/12/16 Coastal property owners who need to replace docks, piers, bulkheads, or similar structures damaged by Hurricane Matthew along sounds, rivers, and creeks may be able to do so quickly by using an emergency general permit offered by the state’s coastal management agency.

Whether Hurricane Matthew tracks east or west, coastal North Carolina will get a visit.  If you own a house, bulkhead, dock, and/or pier in coastal North Carolina, take pictures of your property before you stock up on the standard emergency provisions of bread, water, gas, and cash.  

Early this week, on October 3, 2016, in anticipation of Hurricane Matthew, Governor McCrory declared a "State of Emergency" for 66 North Carolina counties to allow for preparation, response, and recovery from the storm.  Twenty of those counties are subject to regulation under the Coastal Area Management Act ("CAMA") administered by the North Carolina Department of Environmental Quality ("DEQ") Division of Coastal Management ("DCM").  

Generally, CAMA requires owners to obtain a permit from DCM for certain repairs or replacement of coastal structures.  However, the repair (but not replacement) of any structure damaged by natural elements is exempt from the permit requirement if the repair is 50% or less than the value of a non-water dependent structure or does not enlarge the original structural elements of a water dependent structure, such as a dock or pier.  But what if Matthew destroys more than 50% of a coastal structure?  In such case, DCM would require the owner to get a permit for such replacement.

Although CAMA does not issue emergency permits upon the declaration of a State of Emergency, DCM may issue a special "Emergency General Permit" after Hurricane Matthew passes.  Once Matthew passes, DCM's Directors and District Managers will assess the severity and scale of coastal property damage and in counties designated as disaster areas.  They will then inform the Secretary of DEQ, who has the discretion to initiate the CAMA Emergency General Permit for the replacement of structures, reconstruction of dunes, and maintenance excavation of existing canals, basins, channels, or ditches damaged, destroyed, or filled in by the storm in estuarine (rivers, sounds, creeks) areas.  It must be noted that Emergency General Permits are not available for the replacement of oceanfront structures.

The Emergency General Permit will be tailored to the situation Hurricane Matthew leaves in its wake, and may include:

  • Replacement of structures that, due to the hurricane, sustained damage or destruction of more than 50% of their market value;
  • Permit fee waivers for beach bulldozing reconstruction or repair of damaged frontal or primary dune systems; and,
  • Permit fee waivers for maintenance dredging activities within existing basins, canals, channels, and ditches.  

This is where pre-hurricane pictures come in - the Emergency General Permit may allow the replacement of non-water dependent estuarine waterfront structures when the damage is more than 50% of a structure's pre-storm market value or when the damage requires enlargement of an original water dependent structure.  The property owner can use pictures to substantiate that the value of the property loss is, in fact, more than 50% of market value, requiring replacement and qualifying for an Emergency General Permit.  This is similar to the process whereby an owner must prove to an insurance company the actual monetary loss before the insurance company will pay the owner the cash with which to replace the property.  Pictures will support the property owner's explanation to DCM staff that what the owner seeks to replace was damaged by the hurricane, that the loss is more than 50% of market value, or that it requires enlargement of a water dependent structure.

CAMA also contains permitting provisions for emergency work if the Emergency General Permit is not issued.  In either case, consultation with DCM staff and experienced counsel is highly recommended to determine if a CAMA Permit is required.  Also, regardless of the fact an Emergency General Permit may apply, owners should remember that all replacement, reconstruction, and maintenance excavation activities must conform to current CAMA standards.  

So, take pictures, stock up, lock up, and be safe, Eastern North Carolina!

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© 2016 Ward and Smith, P.A. For further information regarding the issues described above, please contact Amy P. Wang.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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