20030166 Ver 2_More Info Received_20101112

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"~ ~ARDAND SMITI3, YA.
A'~11' 1'. ~X'AI~G. Atturncv at l,:r~;
IQO1 G~llc~c(;~nn~t Q5~6~~)
I'<~st C)ffir~• Fins 8( r
Nc~r Cn~rn, NC _'SX~i-~~5y7
Novetl~ber 1 1.2010
VIA I~.-Mf1IL
ORIC;INAL VIA OVF,RN1C;11T UI=I IVFRY
Mr. AI I lodge
NCDL.NR -Division of Vl'ater Quality, Surface Water Protection
943 Washington Square Mall
Vl'ashington, NC 27889
al.hod~;eru~ncdcm•. Gov
RI:: John (;ee\vax
Geewax Property. John Gaskins Drive, Ocracoke
DWQ Project # 03-16fi (llyde C'ountY)
Our File 100868-00001
[)ear Al:
P: ~51..6i?551b
F: 25?.672.547 i
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On behalf of .John Geewax, we provide this supplement to Mr. Geewax's June 30, 2010, request
fir written authorization from the NCDENR Division of Water Quality ("DWQ") for the 3-ft. by
550-ft. open-slatted wood water access walkway (the "Walkway") on his propcrt}~ in Ocracoke
along Pamlico Sound. The Walkway prtwide~s access to water dependant structures both existing
and permitted far the Property, specifically a bulkhead and piers. Such a use is allowable in the
riparian buffer according to the 'far-Pamlico R1Ver Buffer Protection Rules. 15A NCAC 2B
.0256 et seg. (t11e "Tar-Pam F3uffer Rules"). The Tar-Pam Buf~ier Rules provide that a use
designated as allowable can proceed withitl the riparian bulfer provided that there; are no
practical alternatives to the requested use. I SA NCAC 2B .0259(7)(b). Although there are no
regulatory definitions or guidelines 1br access trails to water dependant structures such as
n~ir. Geewax's Walkway, DWQ has recognized that such uses can proceed provided certain
limitations are met. DW(2 Buffer Intetpretation/Clarification Memo #2009-004 (the "Bur-fer
Interpretation").
Mr. Cicewax previously submitted with his request a completed Pre-COnStrUCt101] Notice
("PCN") that includes (i) his name, address and phone number; (ii) the general nature of the
Walkway; (iii) the location and jurisdiction of the Walkway; and, (iv) a map of sufficient detail
ASItI?b'11,LIi GRGt?NVll.l,ls NI?W' BIi12~]
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WAxDAND SMITH, P.A.
Mr. AI t}odge
November 11, 201
Page 2
to accurately delineate the boundaries of the land utilised i^ the Walkway location and the
dimensions and extent of related disturbance in the riparian butlers, in partial satisfaction of
15A NCAC 213 .250(8){B). This letter will provide the remaining elements to satisfy the
1'ar-Pam I3ui'ter Rules, spccitically an explanation of why the Walk~~-ay cannot he practically
accomplished. reduced or recontigurcd, and the hest management practices used, to better
minimize disturbance, preserve aquatic life and habitat. and protect water quality in the riparian
buffer.
'hhe "has-Pam Buller Rules require that an applicant l~~r a determination of "No Practical
Alternatives" show that the following has been met:
(i) "I~he basic project purpose cannot he practically accomplished in a
manner that would better minimve disturbance, preserve aquatic life and
habitat, and protect water quality.
(ii) 'hhe use cannot practically he reduced in size or dcnsiiv, reconfigured or
redesigned to better minimize disturbance, preserve aquatic life and
habitat, and protect water quality.
(iii) Hest management practices shall be used if necessary to minimise
disturbance, preserve aquatic life and habitat, and protect water quality.
l SA NCAC 2Fi .0259(8)(a)(emphasis added).
Fl/'.Cl, the basic purpose of the Walkway is to provide Mr. Gecwax deep eater access which he
clu-r•ently does not have from his existing home. Referencing the "Base Map" that was revised
for the LAMA Major Permit Renewal and which was provided to your oi'f ice, a copy of which is
included herein for your convenience (Attachment A), the Walkway is located adjacent to a
bulkhead and rip rap that run parallel to the shoreline along live parcels that abut Pamlico Sound.
Mr. Gecwax owns all live parcels, and they are collectively considered his "Property." I Ie has an
existing home at the western end of~the Property, water ward of which there is an "Existing
Pier." ~hhe Existing Pier does not provide deep water access because the water in that location is
too shallow, barely two feet at low tide, and is nowhere near the dredged channel, as reflected in
the first of the three enclosed photographs (Attachment 13). Mr. Gecwax cannot enter the area
with his vessel, nor moor it to the Existing Pier. The proposed "Permitted Pier" located east oI'
the Existing Pier only provides access where the finger piers branch ofi~at a depth of Iive feet. It
does not provide a boatlift to remove the vessel out of the water such that ic~~xic anti-fouling boat
bottom paint is required while the vessel is immersed for an extended period. 7'he pier and
boathouse that the DENR Division of Coastal Management ("DC'M") has permitted at the eastern
tip of the Walkway (the configuration to which you have referred in our telephone conversations
as the "Gazebo") does provide Mr. Gecwax with access to deeper water i^ Cochran Channel.
Creating access to deep water at this location was permitted by DCM, and Mr. Gecwax dredged
the access channel accordingly. In addition. the Gazebo provides a protective boatlift. In order
to get from his home to his vessel that can he docked at the Gazebo, Mr. Gecwax needs the
Walkway in its current location.

WAUI)A1vI) SMITH, PA.
Mr. Al llodge
November 1 1.2010
Pa~:e
Such ~~~ater-dependant access cannot he practically accomplished by placing the Walk~~av in a
different location or configuration. The Walkway was constructed iii its current location by hand
in an area of none-to-sparse vegetation to minimize disturbance. to serve as a stabilizing force
behind the bulkhead, and to prevent repeat washout and erosion that. had bccu experienced o-1 the
Propert} in the past. Nrotertion ii•om such washout and erosion prese-ves landtivard vegetation,
aquatic file and habitat in storms, and protects water quality by catching debris before it reaches
Pamlico Scni-~d. A different location or configuration for the Walkway would riot provitic
Mr. Gecw~-x ~~%ith comparable deep water access in a manner tl~~at would better minimize
disturbance, preserve aquatic life and habitat. and protect water quality because to do so would
require removing the Walkway from its symbiotic sites with the bulkhead and traversing the
vegetation that exists landward ol~thc Walkway between the border of~ones 1 and 2 ol~the
riparian buffer. Mr. Geewax constructed the Walk~~~ay to pro~~~ide the least obtrusive access to
the Gazebo and to solve c--osion issues o-1 the Property. Relocating the Walkw~-y would be
counter-productive. Therefore, the basic project purpose cannot be practically accomplished in a
,manner that would better minimize disturbance, p-escrvc aquatic file and habitat, and protect
water quality. I SA NCAC 2B .0259(8)(a)(i).
Seco»r~, the ~~'alk~~~ay cannot be re.contigln•ed to better minimize butler impacts because most of
the Nroperty east of Mr. Geewax's home is located in the riparian buffer. 7`hc Walkway is the
only access path for Mr. Geewax from his home to the three permitted uses (the Existing Pier,
the Permitted Pier, and the Gazebo). According to the Buffer Intc-pretalion, access trails to
water dependant structures in the Tar-Pamlico basin (i) can he no wider than six feet: (ii) should
be constructed out of pervious materials; (iii) the footprint of the path n~iust lie aligned to avoid
the removal of woody vegetation; and. (iv} only one access path is allowed from any single
family residence to minimize impacts to the riparian buffer. "I~~hr Walkway fully complies ~yith
the Buffer Interpretation in its c-.-rrent configuration. "1'he Walkway is only three feet wide, }ust
half of the allowable width, and is constructed of pervious material (slatted wood). No
vegetation was disturbed dw•ing its construction because ii is located in a beach area of
wavelstorm wash in which no vegetation has grown since Mr. Geewax purchased the Property in
1998, causing no undue shading and protecting woody vegetation. Finally, not only is the
Walkway the only access path for Mr. Geewax's existing h-~~me, but it would serve as the only
access path to any ~~~ther single family residence that may be built on the Property, thus
minimizing future impacts to the riparian busier.
The Walkway cannot be practically reduced in size or density, reconfigured or redesigned to
better minimize disturbance, preserve aquatic life and habitat, and protect water quality while
providing sufficient access f~~>r Mr. Cieewax's existing home to water-dependant uses on the
Property. 15A NC`AC 2B .02~9(8)(a)(ii). Any routing away from the current configuration
would destroy more vegetation and cover more square footage in the riparian buffer. For
example, although a direct, straight line from Mr. Geewax's home to the Gazebo in theory may
.mean a shorter Walkway, to do so requires traversing the: vegetation that exists landward of the
Walkway and increasing the width to accom-x~odate dune undl-lations and provide pedestrian
safety, ~°esulting in nxn-e square footage in and across the riparian busier and the destruction of
woody vegetation. `i~his is contrary to the policy behind the Buffer Interpretation. In addition,
the Walkway's current location has allowed for native; grasses to establish between it and the

WARI~ANI) SMITH, EA.
Mr. AI Hodge
November l ], 2010
Page. -I
riparian buffer boundaries since storm and t~~~avc sur~~~e has been minimised, as reflected in the
second and third photographs in Attachment B. finally, the public walks on the Property even
though it is privately owned. At its current location, the Walkway provides the public easy
access, diverting people Grnn trampling vegetatiom emerging landward in the riparian boiler, and
the three-foot width allows two pedestrians to pass each other saltily.
'LY~irc/, hest management practices ("BMP") were used in locating and ronstruciing the Walkway
to minimize disturbance, preserve aquatic Tile and habitat. and protect water gt-ality, in
accordance with 15A NG1C 28.02.59(8)(a)(iii). E3MPs arc defined as "a sh•uctural or
nonstructural management-based practice used singularly or in axubination to reduce nonpoint
source inputs to receiving waters in order to achieve ~~~~ater quality protection goals." I ~A ];CAC
2B .02(12(7). As outlined in the PCN and Mr. Ueewax's i-litial request, construction of the
Walk~~ay employed the following BMPs:
a: Ilse of pervious material:
h. Open-slatted spacing of wood planks 1o allow water to drain through while
catrhin~~ debris:
c. Ilse of half of the allowable ~~-idth for access trails to water-dependant uses:
d. }'reservation of vegetation by locating the Walkway in area oi'wavclstorm wash;
and,
e. L1se of hand tools, rather than heavy equipment or mechanized machinery, to
construct the w'alkwav with the lease amount of disturbance during construction.
Although not necessary under the 'Tar-Pam Bolter Rules, Mr. Gecwax also would be willing to
construct a berm and plant sea grass between the Walkway and the boundary between Lone 1
and lone ? of the riparian buffer in order to preserve aquatic life and habitat and protect water
quality further. A proposal for such an arrangement is illusU•ated in Attachment C.
In addition, it is important to keep in mind that although the Base Map delineates the boundaries
of the Walkway location and the extent of related disturbance in the riparian buffers, it reflects
only an example of future impacts, many o1~ which arc not permitted at this time. Mr. Gcewax is
willing to propose an easement arrangement or restrictive covenant to provide long term use of
the Walkway, as the sole access path allowed from any single family residence on the Property.
Permitted Pier, and Uazeho in the event of finw•e development so a situation will not arise in
which the Walkway can he removed after serving as storm and water quality protection and as a
barrier around established vegetation while providing public access.
]n sum, there are no practical alternatives for the Walkway because it cannot he practically
accomplished in a manner that would better minimize disturbance, preserve aquatic life and
habitat. aiui protect water quality than in its current location while serving its basic purpose. The
Walkway cannot be practically reduced in size or density, reconfigured or redesigned to better
minimize disturbance, preserve agt-atic lice and habitat and protect water quality because not
only ~~-ere alternatives considered in selecting the BMPs used, but in its current size and location

WARDAIVI~ SMITH,P.A.
Mr. Al }lodge
November 1 1. 2010
Page
it optimally halanccs providing deep water access to the Property while minimizing impacls in
the riparian hailer -truly sustainable developrnent.
Mr. t~eewax recognizes that this is ~~m after-the-last request for authorization of the Walkway,
primarily due to his misunderstanding ot~DW~)'s various riparian buffer rules. h~dced, the'I~ar-
1'am I3ufie-• Rules classify as exem ~t driveway access that disturbs equal to or less than 2,500
squarc_ieet of riparian huller. whereas the Walk~'a}~ disturbs nearly 1,000 square lest less. 15A
NCAC 2t3 .0259(6). Further, the Walkway would be exempt from needing ~~my written
authorisation were it located in the; Catawba 1~Ziver 1~3asin or in the Jordan Reserve~>ir where access
trails of similar dimensions are an exempt use. 1_SA NCAC 2B .0243((1) and .0267(9). Va-•ious
communications between Mr. Gee~~~ax and I)W(~ have coni'uscd this situation 1~urther. Under the
circumstances, and in light ol~Mr. Geewax's offer o1'mitigation in the loan of dune constructio-~
and pla-~tings, an easement arrangement, and payment to a private mitigation bank as recognised
in the PCN, we respectfully request that, in the event that either (i) wriricn authorization fior the
Walkway is granted, or.(~ii) the request is denied and N9 r. Geewax removes the Walkway, you
assess no penalties against Mr. Geewax.
Thank you for your consideration of this supplemental request for a finding of "No Practical
Altc;rnativcs" and written authorization of the Walkway. Please do not hc;sitate to call me should
you wish to discuss this matter fi---ther.
With kindest regards,
Very truly yours,
Amv P. W n
AI'W:apw
ND: 4842-9832-4743, v. 3
Enclosures
cc: Mr. John Geewax
Ms. Amy Chapman, DWQ Central Otfice
Mr. Doug Haggett, DCM Morehead City

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