William B. Umstead State Park, Flowage Easement to Wake County

Subject:

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