I have so been waiting for this submerged lands bill

Anyone who tuned in to the legislature post-election and pre-session got a chance to catch up on the history of water policy in North Carolina. Some absolutely fascinating history and legal aspects — lots of common law stuff. One of the very interesting things discussed was that the state owns the land under its rivers and other public waters. Due to some recent case law, it was decided that the state probably ought to document that. (Correct me if I’m wrong on that submerged lands experts.)
Senate Bill 345 Statewide Submerged Lands Survey Main Page
So, I guess as one of those people who wondered what would come of those discussions from last winter, this is the bill I’ve most anticipated. It sounds strange, but could turn out to be a pretty big deal.

Short Title:        Statewide Submerged Lands Inventory. (Public)
Sponsors: Senator Hartsell (Primary Sponsor).
Referred to:  



AN ACT to improve the oversight and management of state‑owned submerged lands, including initiating a process to inventory claims on state‑owned submerged lands.

The General Assembly of North Carolina enacts:

SECTION 1. The Department of Administration shall modify the existing State property database to include a field to indicate whether or not an item within the database includes submerged land. The Department of Administration shall modify the database no later than April 15, 2014, and shall report to the Joint Legislative Commission on Governmental Operations on the completion of the modification no later than that date.

SECTION 2. No structures may be placed on State‑owned submerged lands after the effective date of this act without an easement granted by the Department of Administration. The Department of Administration shall record such easements, if granted, within the State property database using the database field required to be added by Section 1 of this act. This section should not be construed to validate or authorize the presence of any existing structures on State‑owned submerged lands.

SECTION 3. The Department of Administration shall adopt rules specifying the process for how to obtain utility easements on submerged lands, including any fees. The Department shall adopt rules no later than April 15, 2014, and shall report to the Joint Legislative Commission on Governmental Operations on the new rules no later than that date.

SECTION 4. The Department of Administration shall develop and implement procedures with the Department of Environment and Natural Resources for implementing G.S. 146‑8, which relates to the disposition of mineral deposits in State lands under water. The Department of Administration and Department of Environment and Natural Resources shall implement these procedures no later than April 15, 2014, and shall report to the Joint Legislative Commission on Governmental Operations on the implementation status no later than that date.

SECTION 5.(a) Article 4 of Subchapter I of Chapter 146 of the General Statutes is amended by adding the following new section:

§ 146‑20.2.  Non‑coastal submerged lands inventory.

(a) Inventory Process. — The Department of Environment and Natural Resources, Division of Water Resources, in conjunction with the Department of Administration and the Office of the Attorney General, shall inventory all State‑owned submerged lands in non‑coastal counties and shall determine the validity of the claims submitted under this section. In evaluating claims registered pursuant to this section, the Division shall favor public ownership of submerged lands and public trust rights. The provisions of this section shall not apply to the land lying under any private fish pond, irrigation pond, or other waterway not owned by the State.

(b) Claims Submission. — Every person claiming any interest in any part of the bed lying under navigable waters of any non‑coastal county of North Carolina or any right of fishery in navigable waters of any non‑coastal county superior to that of the general public shall register the grant, charter, or other authorization under which the person claims with the Department of Environment and Natural Resources, Division of Water Resources. Such registration shall be accompanied by a survey of the claimed area, meeting criteria established by the Division. Registering any claim with the Division in no way implies recognition by the State of the validity of the claim.

(c) Notice by Publication. — The Division shall give notice of the claims process under this section at least once each calendar year for three years by publication in a newspaper or newspapers of general circulation throughout all non‑coastal counties of the State.

(d) Unfiled Claims Void. — All rights and titles not registered in accordance with this subsection on or before December 31, 2015, are hereby declared null and void.

(e) Annual Report. — On or before September 1 of each year, the Department of Environment and Natural Resources, Division of Water Resources, shall report to the Joint Legislative Commission on Governmental Operations on the following:

(1) The total number of new claims registered.

(2) The number of claims registered that were resolved during the preceding year.

(3) The cost of resolving the claims that were resolved during the preceding year.

(4) The number of unresolved claims.

(5) The projected completion date of the inventory process.

(f) Definition. — For the purpose of this subsection, “non‑coastal county” shall mean all the counties not included in the definition of “coastal counties” in G.S. 113‑205(a).

SECTION 5.(b) The sum of three hundred twenty‑eight thousand dollars ($328,000) is appropriated from the General Fund to the Department of Environment and Natural Resources, Division of Water Resources, for fiscal year 2013‑2014 for the personnel and other expenses associated with inventorying State‑owned submerged lands under G.S. 146‑20.2, as enacted by this section. Three new positions are authorized, to be paid from these funds: one attorney, one paralegal, and one administrative assistant.

The sum of five hundred fifty thousand dollars ($550,000) is appropriated from the General Fund to the Department of Environment and Natural Resources, Division of Water Resources, for fiscal year 2014‑2015, recurring, for the personnel and other expenses associated with inventorying State‑owned submerged lands under G.S. 146‑20.2, as enacted by this section. In addition to the three positions authorized for fiscal year 2013‑2014, the following new positions are authorized effective for fiscal year 2014‑2015, to be paid from these funds: three paralegals and one geographic information system (GIS) specialist.

SECTION 6. Section 5(b) of this act becomes effective July 1, 2013. The remainder of this act is effective when it becomes law.

A lecture on science at the NC legislature

A rather interesting lecture today at the legislature by John Droz, who has figured prominently in the state’s debate over sea-level rise standards.

Some takeaways: Apparently, many of our state’s scientists are actually anti-science and environmentalists are accepting their ideas in cult-like manner. Or something. (Update: here’s the link to a larger version of the slideshow, entitled Science Under Assault.)

There’s a breathtaking amount of irony in this presentation. Pretty sure this story will be making the rounds of various science blogs in short order.

You can watch some of the presentation and decide for yourselves. BTW, this will totally thrill those of you who enjoy watching someone read you a 150 or so slide Power Point presentation.

WRAL – Lawmakers hear from climate change skeptic

Climate change is real

Prediction for Raleigh via Wunderground''s Climate Change page

Nice to hear someone running for president say it out loud.

No one with any sense is arguing that it is not real, although this year during the sea level rise debate several North Carolina legislators enjoyed waving around copies of a copy of Newsweek from the 70s that featured a teasing headline about a new ice age (guess if it’s a headline it must be a scientific consensus, right?).

The fight, unfortunately, is whether humans have anything to do with it. It should not be a big fight, but it serves entrenched and wealthy interests and so it is. Science be damned for profits. That provides the financial fuel to support the opposition, which has made denial a cottage industry for activists and a dependable source of campaign cash for politicians willing to take the right positions.
Here in North Carolina, the climate change conflict has a twist. The question isn’t whether humans are causing change, but whether we should do anything about it.

During our legislature’s debate on the subject, we saw people in opposition to new policies who probably do understand that climate change is real and man-made. But pushed by deep-pocket coastal development interests they’re determined to fight it from becoming a basis for public policy as long as possible.

While that’s damaging enough, the way they’ve gone about it has made it worse. Rather than appeal to pragmatism and cautioning against a too-fast approach in the remedies, they’re cynically using deniers to push their point. They’ve chosen to fight the science and not the policy.

The battle in North Carolina is not just about the coast. As the chart above for Raleigh and for places in the mountains and Sandhills show, climate change will affect the whole state. We may not be able to understand the effects as well as we can understand the fact that the sea will rise, but a rapid rise in temps will impact our lives and all living things around us. There are many choices ahead in what to do, but the only one sure to hurt us is nothing.

In this election, people need to know where those who want to represent them stand on this issue and whether they believe in basing policy on science at all.

Coastal Review – Sea Level Rise and Public Policy series
Wunderground – Climate Change Main Page
Wunderground Climate Change Predictions (graph) for Asheville, Charlotte, Raleigh, Cape Hatteras

Reuters says fracking land rush coming to an end

If you’re interested in the fracking issue, especially the big currents that drive it, there’s been no better source for insights than Reuters, which has exposed the land speculation, shady finances and inner dealings of some of the industry’s biggest players.
This latest analysis, based on the series, says the big energy-driven land rush is over.

With little evidence that its competitors are taking on the role of leading industry lease-buyer, Chesapeake’s new found frugality is expected to usher in a more sedate period of U.S. land buying, and a sizeable cultural shift for an industry that has been acquiring new acreage at almost any cost.

A surge in drilling into rich shale-gas seams from Pennsylvania to Texas has pushed natural gas prices to 10-year lows, forcing producers, including Chesapeake, to cut output and put the brakes on new wells.

In a practical sense, what that means for North Carolina is less frenzy, which is a good thing. It does not mean land speculation isn’t going to happen, but there’s less cash sloshing about and, because of prices, less economic incentive to open up new areas.

Reuters also is keeping up its investigative work on possible collusion on purchases between Chesapeake and Encana in Michigan.

As Chesapeake Energy Corp and Encana Corp face antitrust investigations, emails reviewed by Reuters indicate that top executives of the two rivals shared sensitive information that gave Chesapeake the upper hand in deals with Michigan land owners.

New sea level rise legislation

Update: Last night, the North Carolina Senate approved H819 40-1.
This morning after a long, spirited and often weird debate the NC House passed it 68-46.

Here’s the post from last night . . .

The final tweaks are in for H819, the much storied Study and Modify Certain Coastal Management Policies Act. The House is set to vote in the morning. The Senate is still in session. It’s 2:18 a.m.
Full bill history with links is here.
Here’s the new language mandating the sea-level rise policy. It’s mouthful:

The Coastal Resources Commission and the Division of Coastal Management of the Department of Environment and Natural Resources shall not define rates of sea-level change for regulatory purposes prior to July 1, 2016.

SECTION 2.(c) The Coastal Resources Commission shall direct its Science Panel to deliver its five-year updated assessment to its March 2010 report entitled “North Carolina Sea Level Rise Assessment Report” to the Commission no later than March 31, 2015. The Commission shall direct the Science Panel to include in its five-year updated assessment a comprehensive review and summary of peer-reviewed scientific literature that address the full range of global, regional, and North Carolina-specific sea-level change data and hypotheses, including sea-level fall, no movement in sea level, deceleration of sea-level rise, and acceleration of sea-level rise. When summarizing research dealing with sea level, the Commission and the Science Panel shall define the assumptions and limitations of predictive modeling used to predict future sea-level scenarios. The Commission shall make this report available to the general public and allow for submittal of public comments including a public hearing at the first regularly scheduled meeting after March 31, 2015. Prior to and upon receipt of this report, the Commission shall study the economic and environmental costs and benefits to the North Carolina coastal region of developing, or not developing, sea-level regulations and policies. The Commission shall also compare the determination of sea level based on historical calculations versus predictive models. The Commission shall also address the consideration of oceanfront and estuarine shorelines for dealing with sea-level assessment and not use one single sea-level rate for the entire coast. For oceanfront shorelines, the Commission shall use no fewer than the four regions defined in the April 2011 report entitled “North Carolina Beach and Inlet Management Plan” published by the Department of Environment and Natural Resources. In regions that may lack statistically significant data, rates from adjacent regions may be considered and modified using generally accepted scientific and statistical techniques to account for relevant geologic and hydrologic processes. The Commission shall present a draft of this report, which shall also include the Commission’s Science Panel five-year assessment update, to the general public and receive comments from interested parties no later than December 31, 2015, and present these reports, including public comments and any policies the Commission has adopted or may be considering that address sea-level policies, to the General Assembly Environmental Review Commission no later than March 1, 2016.

Awaiting reaction from our state’s esteemed science community.

Mining and energy board appointments an interesting mix

The usual end-of-session appointments bill has a long list of folks Speaker Thom Tillis wants to see sitting on various boards, including the new Mining and Energy Commission, which is not quite law yet.
One of the new members, Charles Holbrook seems to have a problem with the idea of man-made climate change and a lot of opinions on other matters. Another, Ray Covington owns a ton of land in the shale gas region and has a company that’s been working with landowners on lease deals. I just talked to one informed observer who wondered how the guy could ever vote on anything fracking related given his conflicts.
Oh, and nominee Christopher J. Ayers is a lawyer who represents the energy industry.

Google away.

SECTION 1.29.(b)  If Senate Bill 820, 2012 Regular Session, becomes law and Senate Bill 810, 2012 Regular Session, does not become law, then the following shall be appointed to the North Carolina Mining and Energy Commission: Charles E. Holbrook of Moore County (Seat 7) for a term expiring on June 30, 2014, Raymond T. Covington of Guilford County (Seat 4) and Christopher J. Ayers of Wake County (Seat 6) for terms expiring on June 30, 2015, and Charles Taylor of Lee County (Seat 5) for a term expiring on June 30, 2016.

Will Supremacy Clause trump new state fracking rules?

The fallout continues over yesterday’s big takeout by Reuters on possible collusion between Cheasapeake Energy and Encana to suppress land prices in Michigan. The state is taking a hard look at the deal and as is pointed out in today’s follow up story, the land in question is now going to be tied up in the investigation.

About 80 percent of Chesapeake’s Michigan acreage is located on land it leased from the state. “I assume the state of Michigan will be fairly aggressive in investigating the alleged improprieties raised in the article, and similarly private landowners also appear to have some basis for seeking damages” if the companies conspired to keep land prices low, said Mark Hanson, an oil analyst with Morningstar in Chicago.

(Also of note via Reuters is yet another cautionary tale of land speculation and fracking)

While the Michigan story continues to unfold, the other major fracking headline comes from comments yesterday by Energy Secretary Ken Salazar that the feds need to step in and regulate the industry. Via The Times:

“There are some who are saying that it’s not something we ought to do, it should be left up to the states. That’s not good enough for me because states are at very different level, some have zero, some have decent rules.”

If the feds get involved, especially if they put in place a comprehensive set of rules, what the General Assembly just set in motion to deal with fracking will need to produce regulations and rules that jive with the federal regs or be superceded by them.
New fed regs will also likely spell out what the states can and can’t do.
That process could slow the process in North Carolina or at the very least force a rewrite of whatever rules DENR comes up with in the interim.

The land grabs behind fracking

Reuters has been killing it lately in its investigation of fracking finances, specifically the various deals done by Chesapeake, a major player in the fracking industry, and the company’s high flying CEO Aubrey McClendon.

Special Report: Chesapeake and rival plotted to suppress land prices

Exclusive: Chesapeake documents detail how CEO fuses personal, corporate interests

Special Report: The lavish and leveraged life of Aubrey McClendon

Their latest piece looks at land deals and fracking. Protecting landowners from predatory leases or behaviors on the part of land companies has become one of the chief concerns raised about fracking in North Carolina. The image portrayed in the hearings – and one I’m sure pushed by the oil and gas industry – is that there are a few bad actors in the business and they can be dealt with by adding more protections in lease requirements, mineral rights purchases, land buys and so on.

But what if there’s something bigger than just a few unscrupulous landmen? What if the two biggest players in the industry get together to suppress land prices in an entire region? What if the bad actors are playing the lead role?

In emails between Chesapeake and Encana Corp, Canada’s largest natural gas company, the rivals repeatedly discussed how to avoid bidding against each other in a public land auction in Michigan two years ago and in at least nine prospective deals with private land owners here.

In one email, dated June 16, 2010, McClendon told a Chesapeake deputy that it was time “to smoke a peace pipe” with Encana “if we are bidding each other up.” The Chesapeake vice president responded that he had contacted Encana “to discuss how they want to handle the entities we are both working to avoid us bidding each other up in the interim.” McClendon replied: “Thanks.”

That exchange – and at least a dozen other emails reviewed by Reuters – could provide evidence that the two companies violated federal and state laws by seeking to keep land prices down, antitrust lawyers said.