Does the North Carolina Constitution require a three-fifths supermajority vote of both houses of the General Assembly before the State can grant a flood-control flowage easement on Umstead State Park land to Wake County?

Plain-English summary

North Carolina officials asked whether granting Wake County a flowage easement on William B. Umstead State Park for flood control required approval by three-fifths of each house of the General Assembly. The Attorney General answered no for the proposed easement described in the opinion.

The state constitution dedicated the park to the State Nature and Historic Preserve. The opinion says legislative approval is required for use of park property for purposes unrelated to the preserve's stated purposes. It notes that Wake County is a political subdivision and that its flood-control project serves purposes embraced by the constitutional policy to conserve and protect the state's lands and waters.

The Division of Parks and Recreation had investigated the specific proposal. Its memorandum said the dam would be downstream of the park, while heavier-rain events would keep floodwater in part of the park longer. The quoted studies predicted minimal effects on woody vegetation, no adverse effect on the Piedmont Beech National Natural Landmark, and no significant change to the 100-year flood pool size. On the information provided, the Attorney General concluded that this easement was “appropriate to, consistent with and not detrimental to” park purposes, so legislative approval was unnecessary.

The opinion does not evaluate a private project, establish a “meaningful impact” test, or decide whether every flood-control easement would receive the same answer.

Currency note

This opinion addresses the proposed Wake County easement on the facts reported in 1986. Check current constitutional and statutory requirements for a present parkland proposal.

Background and statutory framework

Article XIV, § 5 sets out the preserve's conservation policy and allows the General Assembly to prescribe conditions and procedures by general law. The opinion quotes G.S. 143-260.9, which says dedication does not prevent normal maintenance and improvement of existing structures or facilities when appropriate to and consistent with the property's purpose. It then evaluates the Division's project-specific ecological and recreation findings.

The negative answer is tied to this county flood-control project and the record furnished to the Attorney General. The opinion says use for unrelated purposes requires legislative approval, but it does not classify a hypothetical private use or specify the result of a different impact study.

Common questions

Why did this easement avoid the three-fifths approval requirement?

The opinion says the county's flood-control purpose was within the constitution's conservation purposes. It also relied on the Division's investigation showing the particular easement was consistent with and not detrimental to the park's purposes.

Where would the dam be built?

The memorandum quoted in the opinion says Structure 25 would be downstream of the park, while it would increase how long floodwater remained on some park land during heavy rain.

Did the opinion decide the rule for a private flood-control project?

No. It expressly notes Wake County's status as a political subdivision and examines the county's proposal. It gives no separate rule for a private project.

Did it set a threshold based on “meaningful impact” on park use?

No. It reviewed the reported effects of this proposed easement and concluded they were consistent with park purposes. It did not announce that phrase or a general impact threshold.

Source

• Landing page: https://ncdoj.gov/opinions/william-b-umstead-state-park-flowage-easement-to-wake-county/

Citations

• N.C. Const. art. XIV, § 5 (State Nature and Historic Preserve)
• G.S. § 143-260.9 (dedication does not prevent maintenance and improvement consistent with dedicated purpose)

Original opinion text

Requested By: Charles L. Holliday State Building Division

Dr. Wes Davis Division of Parks and Recreation

Question: Does dedication of Umstead State Park to the State Nature and Historic Preserve authorized by Article XIV, § 5, Constitution of North Carolina, require a vote of three-fifths of the members of each House of the General Assembly before a flowage easement may be granted to Wake County for flood control purposes?

Conclusion: No.

The purpose and policy of the State Nature and Historic Preserve is stated in the Constitution as follows:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.

Legislative approval is required only for use of the park property for other purposes unrelated to the above. We note that Wake County is a political subdivision of the State and the purposes of their flood control project extend beyond the park boundaries and are embraced within the purposes above stated.

We further note that the Constitution also provides:

The General Assembly shall prescribe by general law the conditions and procedures under which such properties or interests therein shall be dedicated for the aforementioned public purposes.

Pursuant to that constitutional grant of authority, the General Assembly has enacted G.S. 143-260.9:

§ 143-260.9. Dedication shall not affect maintenance and improvement of existing structures or facilities.

The dedication of property to the State Nature and Historic Preserve shall not prevent the administering State agency or local governing body from carrying out normal maintenance and improvement of existing structures or facilities that are appropriate to, and consistent with the purpose for which the property in question was obtained by the State agency or local governing body.

The Division of Parks and Recreation has conducted extensive investigation to determine that the proposed easement is consistent with and not detrimental to the proposed uses of the Park. We are furnished with extensive reports, maps and data by memorandum dated February 10, 1986, in support of the Division's conclusions. The following are excerpts from the memorandum:

The easement is needed by the County in order to proceed with Structure 25 in accordance with the Crabtree Creek Watershed Project. Although the dam structure itself will be located downstream of the Park, not on the park land, the structure will, during periods of heavy rain, increase the time that flood waters are retained in the Park. According to studies by the DNRCD, the increased retention time will not adversely affect plant or animal communities within the easement area or affect the continued use of the area for park (recreation and conservation) purposes.

What effects will the flooding have on future recreation development at Umstead Park? The 1974 Umstead Master Plan shows the area in question to remain as a natural area, without development. (See Master Plan, attached as Exhibit Three).

The only planned development which lies within the 100 year floodplain would be a bridge/roadway connecting the two, currently separated, park entrances. Since this bridge would lie within the 100 year floodplain, with or without Structure #25, and since hydrologic modeling shows no significant change in the size of the flood pool even during the 100 year event with Structure #25 in place, we would not be required to relocate or redesign the bridge to a higher standard than that required under existing circumstances.

What recreational opportunities are foregone by the flooding at Umstead? The impact of Structure #25 at Umstead is felt only through an increase in the time water is retained in the floodplain at elevations which will not change from those now in existence. Activities which would normally occur in an undeveloped natural area would be precluded by some amount of time, depending on the severity of the flood event.

What effects will the flooding have on the flora and fauna at Umstead State Park? A recently completed vegetative analysis, attached, concluded that:

If the duration of inundation through time is as predicted, it is anticipated that the impact on existing woody vegetation will be minimal. Before symptoms of stress will be observable for those species discussed, the duration of flooding would have to be extended for 40 hours beyond the 100 year flood event. On Figure 2, two broad areas of floodplain are depicted that will be flooded for substantially longer periods than at present during 10, 25, 50, and 100 year flooding events. These two areas are the two largest expanses of floodplain and are comprised of 36 acres.

No adverse impacts due to inundation are anticipated within the Piedmont Beech National Natural Landmark. (The features for which the natural area was designated are located upslope from the floodplain). A small part of the National Landmark is situated within the 235-240 ft. contour interval. This portion is comprised of a narrow strip of floodplain, creek bank, and creek at the base of the slopes. However, no intolerant species grow in this area. (page 14).

Based upon the information furnished, this Office concludes that the proposed easement is appropriate to, consistent with and not detrimental to, the purposes of the park. Therefore Legislative approval is not required.

LACY H. THORNBURG
Attorney General

T. Buie Costen
Special Deputy Attorney General