History of the CRC’s sandbag rules
In 1984-85, the Coastal Resources Commission began developing rules prohibiting permanent shoreline stabilization structures, such as seawalls, on the oceanfront. But sandbags were allowed as a temporary means of protecting imminently threatened structures. This policy was in accordance with the 1984 recommendations of the CRC Outer Banks Erosion Task Force that stated:
“Temporary measures to counteract erosion, such as beach nourishment, sandbag bulkheads and beach pushing, should be allowed, but only to the extent necessary to protect property for a short period of time until threatened structures may be relocated or until the effects of a short-term erosion event are reversed. In all cases, temporary stabilization measures should be compatible with public use and enjoyment of the beach.”
The purpose of allowing the sandbags was to provide for the temporary protection of a structure until the owner could make arrangements to move the structure or until the beach and dune system could naturally repair itself. As the CRC developed the rule, it was noted that “temporary” would normally require time limits on projects. At that time, limits on structural types, including the ephemeral nature of materials used for sandbags, was thought to be a more practical method of ensuring removal of the structures from the beach.
The original 1985 rule included some of the current provisions, such as the definition of imminently threatened, the 20-foot seaward limit, adjacent property owner notification and no interference with use of the beach. The rule also included a provision requiring removal if the sandbag structure remained exposed for more than six months. The only other limit on the dimension of the structure was that it be no more than 15 feet wide and that it be above the high tide line.
In March of 1987, the CRC requested information on the effects sandbag structure design and placement were having on the public beach.
During the early 1990s, the commission began hearing numerous complaints that sandbags were not being used as a temporary measure but as a permanent shoreline erosion control. Many people complained that sandbags were blocking pedestrian access along the beach and in some cases sandbags were being fortified to become massive immovable structures. The temporary nature of sandbags was indirectly addressed in September 1991 when the CRC discussed the definition of threatened structures and considered requiring the relocation or demolition of a threatened structure two to three years from its designation.
A 1994 inventory of sandbags showed that approximately 15,000 linear feet of ocean shoreline was protected by sandbag structures, with some of the structures being in place for as long as eight years. While most sandbag structures complied with the rules, some were installed without authorization and did not comply with the standards. DCM staff provided the CRC with an analysis of the problems associated with the sandbag rules including what types of structures could be protected by sandbags, when the sandbags interfered with public use of the beach, monitoring burial, limitation on the width of sandbag structures but not the height, and most importantly asked the question, “how long is temporary?”
In 1995, the CRC amended its rules to address the size and physical location of sandbags, the types of structures that were eligible for protection, as well as the time they could remain in place if they were not covered by dunes with stable, natural vegetation. The rule was amended to allow a sandbag structure to remain in place up to two years if it was protecting a small structure (less than 5,000 square feet floor area) and up to five years for larger structures. The rule also allowed sandbags to remain for five years if they were located in a community actively pursuing a beach nourishment project. Existing sandbags installed prior to May 1, 1995, were grandfathered and allowed the full time period prior to removal.
While most North Carolina beachfront communities qualified for the five-year time period, some sandbag structures in unincorporated areas were subject to removal in 1997. However, due to Hurricanes Bertha and Fran in 1996, the CRC extended the deadline to May 1998 for those locations declared federal disaster areas. This deadline was again extended to September 1998 after Hurricane Bonnie.
In 1997, four sites in Dare and Currituck counties were subject to having their sandbags removed. Several of the owners applied for variances from the CRC but their petitions were denied and all of the sandbag structures were later removed.
During the next couple years, the CRC began to receive variance requests from property owners wanting their sandbag structures to remain in place. In Onslow County, six property owners were granted variances to allow their sandbags to remain in place until Aug. 31, 2001.
With the majority of sandbags subject to removal in 2000, the division began preparing to notify property owners of the approaching deadline. Records indicated that 141 properties were to be subject to removal. The division believed this number to be low since prior to 1995, the majority of sandbag permits were processed by local governments and their recordkeeping abilities varied greatly and in some cases, were nonexistent. A post-Hurricane Floyd inventory revealed that 236 temporary sandbag structures had been permitted since the early 1980s.
In January 2000, Dare County submitted a Petition for Rulemaking to the CRC requesting that properties protected by sandbags in communities pursuing beach nourishment be given an additional extension to 2006. Given the time it takes for communities to complete the necessary steps for a beach nourishment project, the CRC granted a coast-wide extension on sandbag permits in these areas to May 2008. The CRC also refined what it meant for a community to be actively pursuing beach nourishment. A community is considered to be actively pursuing beach nourishment if it has:
been deemed worthy of further consideration by a U.S. Army Corps of Engineers' Beach Nourishment Reconnaissance Study, or an ongoing feasibility study by the U.S. Army Corps of Engineers and a commitment of local money, when necessary, or
The CRC added the stipulation that if beach nourishment is rejected by the sponsoring agency or community, or ceases to be actively planned for a section of shoreline, the time extension would be void and existing sandbags subject to all applicable time limits.
The majority of sandbag structures were located in areas included in beach nourishment projects or studies. However, some structures needed to be removed by their owners prior to the May 2008 deadline. In North Topsail Beach, an area within the Coastal Barriers Resource Act (CoBRA) Zone containing a significant number of sandbag structures was dropped by the U.S. Army Corps of Engineers from further study for beach nourishment. North Topsail Beach applied for permits to conduct a privately funded nourishment project to cover this area, as was the case on the east end of Ocean Isle Beach and in the vicinity of the Point in Emerald Isle.
At this time, DCM staff found that 251 sandbag structures had been permitted since 1996, 146 of these since 2001. Prior to 1995, local governments permitted sandbag structures and there was some question as to the accuracy of recordkeeping. For this reason, DCM estimated that there were approximately 320 sandbag structures on the coast.
DCM staff reported that enforcement of the six-foot height limitation on sandbag structures had become an issue. Owners were allowed to maintain the six-foot height of the structure as the bags become damaged or sank into the sand. During erosion episodes, the buried bags became exposed, greatly increasing the overall height of the structure. Enforcement was also further complicated by the fact that sandbags could become covered or exposed before any enforcement action could be taken. The CRC directed DCM staff to measure the height of sandbag walls from the base of the structure to the top rather than from the existing beach to the top. This action was taken to ensure sandbag structures didn’t exceed six feet in height, unless otherwise permitted.
With the May 2008 deadline approaching, the division again prepared to notify property owners of the requirement for removal of sandbag structures. However, the situation along the ocean beaches was somewhat different than in 2000. The extensive beach nourishment that occurred along the coast during the intervening years presented a new set of challenges to ensuring compliance with the commission’s rules. Many sandbag structures were not removed prior to nourishment activities, and the bags became covered with sand. Technically, these sandbag structures were out of compliance since the CRC’s rule requires them to be coveredand vegetated.
It had also become typical to find sandbag structures where the bags were inter-laced across properties as adjoining properties become imminently threatened. Since the removal date is dictated by when the first bags are placed, long sand bag structures often have varying expiration dates across properties. Varying expiration dates could also be found when sand bags protecting large structures (five-year limit) are tied in with those protecting a small structure (two-year limit). Given the intricacies of ensuring compliance with the current rule, DCM sought guidance from the commission on how to address the upcoming deadline, the nuances of enforcement and compliance with the current rule and how aggressively to pursue removal of buried bags or bags that become exposed.
In addition to the current time limits and removal deadlines, the commission discussed the possible use of degradable materials rather than polypropylene as a means of ensuring the eventual removal of sandbags from the oceanfront. DCM’s research revealed issues associated with the use of biodegradable textiles for sandbags, primarily concern about the length of time biodegradable bags can withstand the combination of elements present in the coastal environment. The complex nature of coastal beaches makes it difficult to predict how long a biodegradable sandbag would last, as a variety of assailants including microorganisms, temperature, moisture, humidity, seawater composition and wave energy act upon beaches. In addition, pathogenic viruses, bacteria, and fungi are present in stormwater runoff. The combination of these factors would lead to the increased degradability of any natural fibers used in sandbag installations.
The CRC ultimately decided that the current rule would be enforced and all uncovered sandbags would have to be removed in May 2008. Sandbag permits could still be applied for throughout this process and there was interest in modifying the sandbag rules.
DCM sent letters to 371 property owners with active sandbag structure permits in preparation for the May 1, 2008 deadline for the removal of certain sandbag structures.
DCM began to inventory sandbag structures, to determine which ones would need to be removed. Sandbags structures subject to removal were prioritized based on how long they had been in place, condition of the bags, and whether they were an impediment to the public’s use of the beach. This prioritization was used to notify property owners that their sandbags must be removed.
The CRC received a Petition for Rulemaking from the Landmark Hotel Group requesting amendments to the sandbag rules that would allow specific provisions for their use in protecting commercial structures and to allow indefinite maintenance of the structures. The CRC denied the petition.
The CRC received a Petition for Rulemaking from the law firm Kennedy Covington Lodbell & Hickman L.L.P., representing property owners from Figure Eight Island, Nags Head and Ocean Isle Beach. The petition requested amendments to the CRC’s sandbag rules to remove the time limits on sandbags and change the “actively pursuing beach nourishment” provision to a long-term erosion response plan modeled after the proposed static line exception policy. The petition also created a new sandbag management strategy for Inlet Hazard Areas where the maintenance of sandbags would be tied to an inlet relocation plan or an inlet-monitoring plan. DCM was supportive of the request to create a new strategy inside IHAs due to the limited effectiveness of beach fill projects in these areas. While the petition was ultimately denied, the CRC directed DCM staff to incorporate some provisions of the petition that would improve the current rule language.
By the May 2008 CRC meeting, the division had received 29 requests for variances from the CRC’s rules governing the use of sandbags.
A Comprehensive Beach Management Task Force Subcommittee Report recommended conditioning certain CAMA permits to preclude the use of sandbags under the single-family exception and recommended consideration of alternative sandbag structure designs.
The CRC approved amendments to the sandbag rules [15A NCAC 7H .0308(a)(2)] to allow sandbags to remain in place for eight years if a community is actively seeking an inlet relocation project; require sandbags to be removed when the structure is no longer threatened, when the structure is removed or relocated, or upon completion of an inlet relocation or beach nourishment project; and to allow structures to be protected more than one time in an Inlet Hazard Area. Additional language was also added to the criteria by which a community would be considered as pursuing a beach nourishment or inlet relocation project.
DCM sent 20 letters to property owners requesting removal of sandbag structures that had exceeded their time limits. In addition, a GIS map depicting the location of sandbag structures was made available on the Division’s web site.
In response to Hurricane Hanna and an unnamed storm, an Emergency General Permit was issued September 29, 2008, to allow sandbags that were previously covered and vegetated, but that had been exposed as a result of either storm, to be recovered.
An administrative law judge dismissed a motion to stay enforcement by 18 recipients of sandbag removal letters. The homeowners sought permission to repair their sandbag structures while they pursued variances to retain their sandbags, and also sought to keep DCM from going forward with enforcement. After the ruling, the division sent notices of violation to homeowners who received the first round of sandbag removal letters in September 2008.
Session Law 2009-479 (House Bill 709) established a moratorium on certain actions of the CRC, preventing the removal of a temporary erosion control structure located in a community that is actively pursuing a beach nourishment project or an inlet relocation project. The moratorium does not prohibit the commission from:
Granting permit modifications to allow the replacement, within the originally permitted dimensions, of temporary erosion control structures that have been damaged or destroyed.
Requiring the removal of temporary erosion control structures installed in violation of its rules.
Requiring that a temporary erosion control structure be brought back into compliance with permit conditions.
Requiring the removal of a temporary erosion control structure that no longer protects an imminently threatened road and associated right-of-way or an imminently threatened building and associated septic system.
While the legislative moratorium halted enforcement action on sandbag structures due to time limits, it did not prevent the removal of sandbags that were out of compliance with other provisions of the rules, such as structure dimensions and lack of necessity. Due to the large number of sandbag structures with expiring permits, the division developed a protocol for prioritizing structures for removal in a rational and orderly manner. Structures were prioritized based on whether or not they were covered and vegetated, whether they impeded public access to the beach, as well as their age and physical condition. Of the 19 structures with sandbags initially prioritized by the division for removal (one of the 20 was a duplicate) prior to the moratorium:
In reviewing the development and evolution of sandbag rules, it has been clear that the CRC has maintained an understanding that coastal property owners want to protect their homes from erosion. The commission’s sandbag rules were written to allow property owners to temporarily protect imminently threatened oceanfront structures, while pursuing more permanent solutions, such as beach nourishment or relocation of the structure. Over the years, the CRC has attempted to achieve a balance between a homeowner’s desire to protect private property and the public’s right to use the state’s beaches. Since 1985, sandbags have been intended to provide temporaryprotection to imminently threatened structures, and have not been envisioned as a permanent protective measure for chronic oceanfront erosion.
There are currently about 352 sandbag structures on North Carolina beaches, 149 of which have reached their time limits.
The CRC is continuing to engage coastal stakeholders in a discussion on the future of the commission’s sandbag rules. The next stakeholder meeting is scheduled for 10 a.m. Nov. 17 in the auditorium of the NOAA Administration Building on Pivers Island in Beaufort.