28259_COWGILL, ROBERT_20010810

E CAMA and DREDGE AND FILL
N G E E R A L
PERMIT
as authorized by the State of North Carolina
Department of Environment and Natural Resources anc
6in an area of environmental concern pursuant to 15 NC
Applicant Name
Address
City State
Project Location (County, State Road, Water Body, etc.)
ission
Phone Number 1 -1
zip
t
Type of Project Activity r� F d " f < �R, /44
1, P Z- :.�1 % �/ r� irrt S S
9 'I i -) =a
PROJECT DESCRIPTION SKETCH
(SCALE:
f•
f
Pier (dock) Length 4 �t
Groin Length
number
'
Bulkhead Length
max. distance offshore
f
I r
_.
Basin, channel dimensions
cubic yards
...._
Boat ramp dimensions
9
Other
i
This permit is subject to compliance with this application, site drAwing
J�' a ,.1 j� ,.�
�i'
and attached general and specific conditions. Any violation of these terms
fine,
{l—
applicant's signature
may subject the permittee to a imprisonment or civil action; and
may cause the permit to become null and void.
_.L-- -0,,f
This permit must be on the project site and accessible to the permit of-
permit officer's signature
j ficer when the project is inspected for compliance. The applicant certi-
fies by signing this permit that 1) this project is consistent with the local
issuing date expiration date
land use plan and all local ordinances, and 2) a written statement has
been obtained from adjacent riparian landowners certifying that they
have no objections to the proposed work,
attachments
In issuing this permit the State of North Carolina certifies that this project
is consistent with the North Carolina Coastal Management Program.
application fee

State of North Carolina
©epartment of Environment •
and Natural Resources ,►
Wilmington Regional Office �A
` Division of Coastal Management
Michael F. Easley, Governor
NCDENR
William D.
NORTH CAROLINA DEPARTMENT OF
Ross Jr., Secretary ENVIRONMENT ANNATURAL RESOURCS
Donna D. Moffitt, Director D E
August 10, 2001
Ms Elfleda G. Shepard
194 Charles Creek Road
Sneads Ferry, North Carolina 28460
Dear Ms. Shepard:
Thank you for your comments concerning the proposed development by Mr. Robert Cowgill at
222 Shell Drive, in Onslow County.
The project consists of the construction of a private pier and boat dock extending 100' past the
outer edge of marsh into Chadwick Bay. The project is consistent with our regulations (T15A: 07H .1200)
which govern the construction of piers, docks and boat houses in Estuarine and Public Trust Waters Areas
of Environmental Concern. As such, a permit has been issued to authorize the project. A copy of the
permit is attached.
If you wish to contest our decision to issue this permit, you must file for a contested case hearing
within twenty (20) days. Please contact me at [phone], and I can provide you with the applicable
forms and instructions. If you have any questions, or if I can provide any additional information, please
advise.
Sincerely,
i
im Gregson
Voastal Field Representative
cc: Bob Stroud_, DCM
erne Jo Alcoke, Assistant Attorney General
127 Cardinal Drive Extension, Wilmington, N.C. 28405-3845 ! Telephone [phone] • Fax [phone]
An Equal Opportunity Affirmative Action Employer

I t( )Y (:( )( A I..I t
\I fOliNl•:1' (�liNlai•\L
Elfleda G. Shepard
194 Charles Creek Road
Sneads Ferry, N.C. 28460
State of North Carolina Reply to:
Ryke Longest
)C'1 )ilrlll)(11it ()I Jt (sll(,C' Environmental Division
I'. ). IiOX of !�) Tel: [phone]
!i,\LE( ;I I Fax: [phone]
271iO_'-O(i2)
October 1, 2001
CERTIFIED MAIL OCT 0 2 2001
RETURN RECEIPT REQUESTED
Re: Third party Hearing Request
Dear Ms. Shepard:
The Chairman of the Coastal Resources Commission has decided to deny the hearing
request which you submitted. Attached is a copy of the order, signed by the Chairman of the
Coastal Resources Commission, denying your request. The permit decision at issue is no longer
suspended pursuant to CAMA. You may appeal the Chairman's decision by filing a petition for
judicial review in superior court of Carteret County within thirty days after receiving the order.
A copy of the judicial review petition must also be served on the Coastal Resources
Commission's agent for service of process at the following address:
Dan Oakley, General Counsel
Dept. Of Environment and Natural Resources
1601 Mail Service Center
Raleigh, N. C. 27699-1601
Sincerely,
James P. Longest, Jr.
Special Deputy Attorney General
cc: Merrie Jo Alcoke
Charles Jones
Donna Moffitt
Robert Cowgill

STATE OF NORTH CAROLINA
COUNTY OF ONSLOW
IN THE MATTER OF THE THIRD )
PARTY HEARING REQUEST BY )
ELFLEDA G. SHEPARD )
BEFORE THE CHAIRMAN
COASTAL RESOURCES COMMISSION
CMT01- 11
FINAL ORDER
Petitioner requests permission to file a petition for contested case hearing as a third party
pursuant to N.C.G.S. § 113A-121.1(b). Petitioner seeks to challenge CAMA General Permit No.
28259 issued to Robert Cowgill authorizing the construction of a pier in Chadwick Bay, Onslow
County.
Under the Coastal Area Management Act (CAMA), a third party may file a contested case
hearing petition to challenge the issuance or denial of a CAMA permit to someone else only if the
Coastal Resources Commission (CRC) first determines that a contested case hearing is appropriate.
Section 113A-121.1(b) of the North Carolina General Statutes provides that the determination as to
whether a hearing is appropriate should be based upon a consideration of whether the Petitioner:
Has alleged that the decision is contrary to a statute or rule;
2. Is directly affected by the decision; and
3. Has alleged facts or made legal arguments that demonstrate that the hearing
request is not frivolous.
The CRC has delegated the authority to its Chairman to determine whether a third party
request for a hearing should be granted or denied. Rule 15A N.C.A.C. 7J .0301(b). A third party
whose hearing request is granted may file a contested case hearing petition with the Office of
Administrative Hearings. N.C.G.S. § 113A-121.1(b). A third party whose hearing request is denied

may seek judicial review. U
III. FINDINGS OF FACT
A. Petitioner, Elfleda Shepard, owns a shellfish franchise in Chadwick Bay.
B. CAMA General Permit No. 28259 was issued to Robert Cowgill for the construction
of a private pier extending a maximum of 100 feet past the edge of the marsh.
C. The proposed pier will be located in Chadwick Bay adjacent to property the permittee
owns at 222 Shell Drive, Sneads Ferry, in Onslow County.
D. The pier dimensions are 4' by 288' with a 12' by 16' L-shaped pier, and two finger
piers measuring 4' by 26' and 4' by 12'. The total platform space is 344 square feet.
E. The permittee has at least 97 linear feet of shoreline at the project site.
F. The waters of Chadwick Bay at the project site are classified as a Primary Nursery
Area (PNA) by the Division of Marine Fisheries, as SA Waters by the Division of Water Quality,
and are open to the harvest of shellfish.
G. As a part of the general permit process, Mr. Cowgill provided notice to the adjacent
riparian property owners and to the Petitioner as a shellfish franchise holder.
H. CAMA General Permit No. 28259 was issued pursuant to the general permit
provisions in 15A NCAC 7H .1205.
1. Petitioner's Third Party Hearing Request was received by the Director of the Division
of Coastal Management August 31, 2001.
IV. CONCLUSIONS OF LAW
1. Petitioner has alleged that the decision is contrary to Rule 15A NCAC 7H .1205
which provides specific conditions for piers, docks and boat houses in Estuarine and Public Trust

Waters.
2. Petitioner has not demonstrated that she is directly affected by the permit decision.
First, Petitioner alleges that the property in question has 75 feet of shoreline
according to the Onslow County Tax Office and that the proposed pier exceeds the total area
allowable based on a shoreline of less than 100 feet. Rule 15A NCAC 7H .1205(g) provides that
"`T's, finger piers, platforms and decks of piers on lots with shorelines 100 feet or greater in
length shall not exceed a combined total area of 400 square feet. The combined total area for lots
less than 100 feet shall not exceed 4 square feet of per linear foot of shoreline."
Petitioner alleges that the permittee only has 75 feet of shoreline according to Onslow
County tax records. Although Petitioner did not provide a specific reference to the tax record or
a copy of it, it is certainly possible that the tax records reflect a lot width of 75 feet. However, a
Division of Coastal Management Field Representative measured the shoreline on site and
determined that the permittee has 97 linear feet of shoreline. The footage must be calculated by
measuring along the shoreline near the high water mark (as opposed to the highground) since the
rule specifically refers to linear feet of shoreline. According to Rule 15A NCAC 7H .1205(g),
97 feet of shoreline would enable the permittee to have up to 388 square feet of fingers piers and
platforms. The permit in question only authorizes 344 square feet of such structures, less than
the total amount allowed. Thus, there is no merit to the contention that the permit violates 15A
NCAC 7H 1205(g).
Next, Petitioner alleges that that the permit fails to protect the shellfish waters by
including a prohibition on discharges into the water; that the permit fails to protect the shellfish
waters by requiring that the material used in constructing the pier not contain heavy metals; and

4
that the permit fails to address cumulative impacts to the shellfish waters since it is the sixth one
issued in the area with more pending. The CRC's rules do not provide for the type of conditions
Petitioner seeks.
First, the rules of the CRC do not prohibit development in shellfish beds. They
specifically allow DCM to authorize pier construction over a shellfish franchise or lease by both
CAMA major permit and by general permit, as is the case here. The general permit for pier
construction in 15A NCAC 7H .1200 contains the same requirement of notice to the holder of an
affected shellfish lease as the CAMA major permit provisions in 7H .0208. The notice
requirement states that "[a]pplicants for authorization to construct a dock or pier shall provide
notice of the permit application to the owner of any part of a shellfish franchise or lease over
which the proposed dock or pier would extend. The applicant shall allow the lease holder the
opportunity to mark a navigation route from the pier to the edge of the lease." 15A NCAC 7H
1205(p). The rule does not allow the shellfish franchise holder to control the permit process to
limit or prohibit an applicant from exercising his riparian rights by constructing a pier that
otherwise complies with the CRC's development standards.
Petitioner would like to see the permit limit discharges from the pier. Specifically,
Petitioner requests that there be a prohibition of any water line being run down the pier that may
discharge cholorinated water or be used with detergents to wash boats. The CRC's permitting
jurisdiction under CAMA is limited to "development" and that definition does not include
discharges or the type of activity of which Petitioner complains. N.C.G.S. § 113A-103(5)a.
DCM considers installation of electricity and water lines as ancillary to the pier itself and there is
nothing in the CRC's rules to prohibit it. Historically, the Environmental Management

Commission has not required an NPDES permit for this type of incidental discharge either.
Petitioner also seeks to have the permit prohibit the use of certain construction materials
including heavy metals that may harm the shellfish beds. Again, the definition of development in
CAMA does not authorize the Commission to regulate building materials. Although Petitioner
would like to see piers made of non -hazardous materials, the current industry standard for marine
construction includes heavy metals by necessity because of the need to protect the materials from
physical and biological effects of the marine environment. The Division of Coastal Management
has no authority under CAMA or the CRC's rules to prohibit that type of construction. Further,
the Division relies on the Environmental Management Commission to assess whether certain
building materials have an adverse impact on water quality.
Finally, Petitioner argues that the permit fails to address cumulative impacts that might
result from closure of the shellfish waters, alleging that this is the sixth pier to be located in the
shellfish garden. The Division relies on the Shellfish Sanitation Section of the Division of
Environmental Health to determine if potential adverse impacts are present in a particular area.
The standards in CAMA regarding grant or denial of permits do address cumulative impacts,
but the statute provides that a permit should only be denied upon finding that the "proposed
development would contribute to cumulative effects that would be inconsistent with the
guidelines set forth in subdivisions (1) through (9) of this section." N.C.G.S. § 113A-120(a)(10).
Thus, any adverse cumulative effects must first be inconsistent with the guidelines in
subdivisions (1) through (9) in order to warrant permit denial. The Division determined in this
case that the development was consistent with the standards in (1) through (9) and therefore the
fact that this pier will be the sixth pier within a certain area does not in itself require permit

0
denial based upon cumulative impacts.
CAMA authorizes the CRC to designate by rule certain classes of major and minor
development for which a general or blanket permit may be issued. N.C.G.S. § 113A-1 18.l(a).
These general permits cover development which is limited in size, minimally impacts AECs,
occurs on a routine basis, requires little oversight, and does not require public review and
comment. Thus, activities authorized under a general permit are by definition not expected to
have significant impacts. The fact that the CRC has determined that this type of pier fits the
general permit category in itself suggests that the pier will not have the type of adverse impacts
the CRC's rules address.
Petitioner has not raised any facts that would tend to show that the Division's permit
decision contravenes any statute or rule. The permit issued to Mr. Cowgill is lawful under the
current rules and Petitioner's concerns should be addressed through other means such as
amendment to the CAMA statute, a petition for rulemaking, or through another state agency such
as the Division of Environmental Health.
V, ORDER
In conclusion, Petitioner has not met the criteria justifying a contested case hearing.
Petitioner has not alleged facts or made legal arguments that demonstrate that the request for the
hearing is not frivolous, and thus has not satisfied the criteria for hearing established at N.C. Gen.
Stat. § 113A-121.1(b)3. Therefore, Petitioner's request for a Third Party Hearing is hereby
DENIED.

f*
This the day of October, 2001.
Eugene B. Tomlinson, Jr.
Chairman
Coastal Resources Commission

This is to certify that I have caused a copy of the foregoing Final Decision to be served upon
the Petitioner by depositing a copy thereof in the U.S. Postal Service with sufficient postage for
delivery by first class mail and addressed to:
Elfleda G. Shepard
194 Charles Creek Road
Sneads Ferry, N.C. 28460
This the /'.11' day of October, 2001.
EP48935
&s-P. Longest,
C. Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
[phone]

t
ROY COOPER
A"rT-ORNEY GENERAL
SfAf(
State of North Carolina
Department of Justice
P. O. Box 629
RALEIGH
2 7602-062 9
Scptembcr 17, 2001
Lnvinuunrnt:d I)ivi�iun
1'el: [phone]
Fax: [phone]
Eltleda G. Shepard
194 Charles Creek Road
Sneads Ferry, N.C. 28460
Re: Third party Hearing Request
Dear Ms. Shepard:
The Chairman of the Coastal Resources Commission has been called away on personal
business. He will not be able to render a decision today on the third party hearing request which
YOU submitted and will need additional time to make his decision. We will contact you as soon
as lie makes his decision.
Sincerely,
yke Longest
Special Deputy Attorney General
cc: Merrie Jo Alcoke, Assistant Attorney General
Donna D. Moffitt, Director, DCM
Charles S. Jones, Assistant Director, DCM

11
I « )) ( :( )( )I 11 :1 {
\I I( )It.NI.) ( iI...NI .1tAl
Milt(' Of NOCI[1 i,ill'O[Itlil
7 it )_>
August 23, 2001
Mrs. Eltleda Shephard
194 Charles Creek Road
Sneads Ferry, NC 28460
Re: CAMA Contested Case
Dear Mrs. Shephard:
Reply to:
Meredith 10 Alcoke
Environmental Division
Tel: [phone]
Fax:[phone]
{- UG 2 7 2001
I have been assigned to handle the contested case petition you filed with the Office of
Administrative Hearings challenging the pier permit issued to Mr. Robert Cowgill at 222 Shell
Drive. The petition you filed is not appropriate in this case since you are a third party and not the
permit applicant. The proper form should be a Petition for a Third Party Hearing Request, which
I have enclosed with this letter. My understanding is that Jim Gregson, Field Representative for
the Division of Coastal Management, is going to drop the correct form off with Mr. Shephard
while he is in Sneads Ferry tomorrow.
The Coastal Area Management Act (CAMA) requires that the Director of Coastal
Management receive your complete Third Party Hearing Request within twenty days of the
permit decision, which in this case is August 30, 2001. I have enclosed the relevant portion of
CAMA for your review.
Please call Jim Gregson at the Division of Coastal Management Wilmington office at
910-395-3900 if you have any further questions.
Vary truly, urs,
Meredith Jo Alcoke
Assistant Attorney General
cc: Donna D. Moffitt, Director
Charles S. Jones, Asst. Director
Jim Gregson, Field Representative

I
1 ow-vl 5
1'LTITIONER'S NA:, ,1I.:
CO(;NTY
FILE NUMBER
(Petitioner leave this line blank)
THIRD HEARING
REQUEST ON
CAMA PERMIT DECISION
PLEASE TAKE NOTE that the undersigned, a person affected by the decision of (check one):
a Local Permit Officer acting on a CANIA Minor Development Permit
application; or
the Division of Coastal Management, Department of Environment and
Natural Resources, acting on a CAMA Major Development Permit
application or CAMA General Permit application
hereby requests permission from the Coastal Resources Commission to file an appeal pursuant to
N.C. Gen. Stat. § 113A-121.1(b) and N.C. Admin. Code tit. 15A, r. 7J.0300 (Please attach a
copy of the permit application decision. If you cannot obtain a copy of the permit application
decision, please provide the name of the permittee, the project location and the permit number.)
Requests are reviewed by the Chairman of the Coastal Resources Commission to determine
whether a hearing should be granted. The determination of whether to grant a hearing is in the
sole discretion of the Chairman. N.C. Admin. Code tit. 15A, r. 7J.0301(b).
For this application to be complete, the Petitioner must address each factor listed below on a
separate sheet of paper. You must address these factors before your request will be reviewed.
The Chairman's decision to grant a hearing will be based on whether the Petitioner:
(1) Has alleged that the decision is contrary to a statute or rule [N.C. Gen. Stat. §
113A-121.1(b)(1)];
(Please cite the statute or regulation allegedly violated by the permit decision.)
(2) Is directly affected by the decision [N.C. Gen. Stat. § 113A-121.1(b)(2)]; and
(Please describe how you are directly affected by the permit decision.
Persons directly affected by a decision include, but are not limited to:
(a) any owner of real property in the vicinity of the property to
be developed who can show that the proposed development
is likely to have a significant adverse effect on the value
and enjoyment of his property; and
(b) any person who can demonstrate a history of substantial
use ofoziblic resourc-v r'- 'irectly affected by

developmelu icrhen the development Is within or IMIL'hes
upon an area .subject to the public trust. )
(3) Has alleged facts or made legal arguments that demonstrate that the request Cor
the hearing is not frivolous [N.C. Gen. Stat. § 113A-121.l(b)(3)].
(Please summarize the evidence or arguments you will present at a
hearing in support of'your appeal.)
Based on the attached responses to the above factors, the undersigned hereby requests a third
party hearing.
Date Signature of Petitioner or Attorney
Name of Petitioner or Attornev
Address
City State Zip
Telephone Number
NOTES: This request must be served on the Director, Division of Coastal Management, at
the address shown on the attached Certificate of Service Form, within twenty (20)
days of the disputed permit decision. N.C. Gen. Stat. § 113A-121.1(b). Failure to
do so constitutes waiver of the right to request a hearing. A copy should also be
sent to the Attorney General's Office, Environmental Division, at the addresses
shown on the attached Certificate of Service Form.
Approval of a Third Party Hearing Request allows a petitioner to file a contested
case petition with the Office of Administrative Hearings within twenty (20) days
of receipt of the Chairman's Order. N.C. Gen. Stat. § 113A-121.1(b).
Denial of a Third Party Hearing Request is a final agency decision which may be
appealed to the Superior Court in the county where the property is located under
N.C. Gen. Stat. § 113A-121.1(b) and Chapter 150B, Article 4.

CLIZ,I IFICA I.I. rjl sI ImcL;
I hereby certify that this Third Party Hearing Request has been served on the State
agencies named below by depositing copies of it with the United States Postal Service with
sufficient postage for delivery by tirst class mail or by personally delivering copies to the Warned
agencies.
Original served on: Director
Division of Coastal Management
1638 Mail Service Center
Raleigh, NC 27699-1638
and a copy served on: Attorney General's Office
Environmental Division
P.O. Box 629
Raleigh, NC 27602-0629
This the day of
Signature of Petitioner or Attorney
EP/30540/wp
Updated: July 14, 1999

3 113A-121.1. Administrative review of permit de-
cisions.
(a) An applicant for a minor or major development permit who is
dissatisfied with the decision on his application may file a petition
for a contested case hearing under G.S. 15OB-23 within 20 days after
the decision is made. When a local official makes a decision to grant
or deny a minor development permit and the Secretary is dissatis-
fied with the decision, the Secretary may File a petition for a
contested case within 20 days after the decision is made.
(b) A person other than a permit applicant or the Secretary who
is dissatisfied with a decision to deny or grant a minor or major
development permit may file a petition for a contested case hearing
only if the Commission determines that a hearing is appropriate. A
request for a determination of the appropriateness of a contested
case hearing shall be made in writing and received by the Commis-
sion within 20 days after the disputed permit decision is made. A
determination of the appropriateness of a contested case shall be
made within 15 days after a request for a determination is received
and shall be based on whether the person seeking to commence a
contested case:
(1) Has alleged that the decision is contrary to a statute or rule;
(2) Is directly affected by the decision; and
(3) Has alleged facts or made legal arguments that demon-
strate that the request for the hearing is not frivolous.
If the Commission determines a contested case is appropriate, the
petition for a contested case shall be filed within 20 days after the
Commission makes its determination. A determination that a per-
son may not commence a contested case is a final agency decision
and is subject to judicial review under Article 4 of Chapter 150B of
the General Statutes. If, on judicial review, the court determines
that the Commission erred in determining that a contested case
would not be appropriate, the court shall remand the matter for a
contested case hearing under G.S. 15OB-23 and final Commission
decision on the permit pursuant to G.S. 113A-122. Decisions in such
cases shall be rendered pursuant to those rules, regulations, and
other applicable Iaws in effect at the time of the commencement of
the contested case.
(c) A permit is suspended from the time a person seeks adminis-
trative review of the decision concerning the permit until the
Commission determines that the person seeking the review cannot
commence a contested case or the Commission makes a final
decision in a contested case, as appropriate, and no action may be
taken during that time that would be unlawful in the absence of a
permit. (1981, c. 913, s. 3; 1983, c. 400, ss. 1, 2; 1987, c. 827, s. 139;
1995, c. 409, s. 1.)