79-19 Amended(CRC) 2020 Town of Sunset Beach

Permit Class Permit Number
AMENDED 79-19
(BY CRC VARIANCE) STATE OF NORTH CAROLINA
Department of Environmental Quality
and
Coastal Resources Commission 0
Permit
for
X Major Development in an Area of Environmental Concern
pursuant to NCGS 113A-118
X Excavation and/or filling pursuant to NCGS 113-229
Issued to Town of Sunset Beach c/o Hiram Marziano 700 Sunset Blvd. N, Sunset Beach, NC 28468
Authorizing development in Brunswick County at S. Jinks Creek, the Bay Area, Feeder Channel
and Finger Canals, Sunset Beach, as requested in the permittee's application dated 04/03/19, including attached workplan
drawings (25) 1-25 of 25 all dated 01/31/19, and marsh buffer drawings (5) 1-3 of 3 and 1-2 of 2 all dated 03/19/19.
This permit, issued on March 3, 2020 , is subject to compliance with the application (where consistent
with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may
to fines, imprisonment or civil action; or may cause the permit to be null and vota.
Excavation
1) In order to protect juvenile shrimp and finfish populations, no excavation shall be permitted between
April 1 and September 30 of any year without the prior approval of the Division of Coastal
Management, in consultation with appropriate resource agencies.
2) In keeping with the Variance (CRC-VR-19-09) granted by the Coastal Resources Commission (CRC)
on February 12, 2020, and the Order signed by the CRC Chairman on February 25, 2020, the depth
of excavation shall not exceed -6 feet below the mean low water level for South Jinks Creek and the
Bay Area and -5 feet below mean low water level for the Finger Canals. In no case shall the depth of
excavation exceed the depth of connecting waters.
(See attached sheets for Additional Conditions)
This permit action may be appealed by the permittee or other
qualified persons within twenty (20) days of the issuing date.
This permit must be accessible on -site to Department
personnel when the project is inspected for compliance.
Any maintenance work or project modification not covered
hereunder requires further Division approval.
All work must cease when the permit expires on
December 31, 2022
In issuing this permit, the State of North Carolina agrees that
your project is consistent with the North Carolina Coastal
Management Program.
Signed by the authority or me Secretary or uny ano me t-nau
of the Coastal Resources Commission.
_4ZAlf
foi Braxton C. Davis, Director
Division of Coastal Management
This permit and its conditions are hereby accepted.
Signature of Petmittee

Town of Sunset Beach Permit No. 79-19
Page 2 of 5
ADDITIONAL CONDITIONS
3) The temporary placement or double handling of excavated or fill materials within waters or vegetated
wetlands is not authorized.
4) No excavation or filling of Coastal Wetlands is authorized by this permit.
5) In accordance with commitments made by the permittee and to satisfy resource impact concerns,
excavation shall not occur within ten (10) feet of any Coastal Wetlands.
6) All excavation shall take place entirely within the areas indicated on the attached workplan drawings.
Oyster Relocation
7) Prior to the initiation of any dredging activities, the permittee shall, in coordination with the Division of
Marine Fisheries, develop and implement an oyster relocation plan. Contact the Division of Marine
Fisheries at [phone] to initiate the required coordination. Notice of satisfactory completion of the
relocation efforts shall be provided to the Division of Coastal Management prior to initiation of
dredging.
Upland Spoil Disposal
8) No excavated materials shall be deposited, even temporarily within 30' of the normal high water line.
9) All excavated materials shall be confined above normal low water level and landward of regularly or
irregularly flooded marsh behind adequate dikes or other retaining structures to prevent spillover of
solids into any marsh or surrounding waters.
10) The spoil disposal area shall be inspected and approved by a representative of the Division of Coastal
Management prior to the commencement of any excavation activities.
NOTE: An Erosion and Sedimentation Control Plan and Stormwater Management Plan may be required
for this project. If required, these plans must be filed at least thirty (30) days prior to the
beginning of any land disturbing activity. Submit these plans to the Department of Energy,
Mineral, and Land Resources, Land Quality Section, 127 Cardinal Drive Extension, Wilmington,
NC 28405.
Beach Fill
11) Prior to the initiation of any beach fill activity on a specific property, easements or similar legal
instruments shall be obtained from the impacted property owner(s) and shall be provided to the Division
of Coastal Management prior to any construction activities .
12) In order to protect nesting sea turtles and aquatic marine resources, no beach fill or associated activities,
including mobilization, demobilization, or remediation or the use of heavy equipment on the beach shall
be permitted between April 1 and November 15 of any year without the prior approval of the Division of
Coastal Management, in consultation with appropriate resource agencies.

Town of Sunset Beach
ADDITIONAL CONDITIONS
Permit No. 79-19
Page 3 of 5
13) This permit authorizes beach fill activities to be carried out one (1) time along the entire reach of the
requested project area. Any request to carry out additional activities within an area where beach fill
activities have been completed under this permit shall require a modification of this permit.
14) Prior to initiation of beach fill activity along each section of beach, the existing mean high water line
shall be surveyed, and a copy of the survey provided to the Division of Coastal Management.
NOTE: The permittee is advised that, per N.C. General Statute § 146-6, the State of North Carolina
claims title to all currently submerged lands and any future lands that are raised above the mean
high water level as a result of this project.
15) The seaward beach fill limit shall be conducted in accordance with the attached work plats (2) labeled
"Dredge Plan Work Area — Sheet 12 of 13" and "Dredge Plan Work Area — Sheet 13 of 13" figures 20
and 21 both dated 01/31/19.
16) Temporary dikes shall be used to retain and direct flow of material parallel to the shoreline to minimize
surf zone turbidities. The temporary dikes shall be removed and the beach graded in accordance with
approved profiles upon completion of pumping activities in that particular section of beach.
17) Should dredging operations encounter sand deemed non -compatible with 15A NCAC 07H .0312
(Technical Standards for Beach Fill Projects); the dredge operator shall immediately cease operation and
contact the NCDCM. Dredge operations shall resume after resolution of the issue of sand compatibility.
18) In order to prevent leakage, dredge pipes shall be routinely inspected. If leakage is found and repairs
cannot be made immediately, pumping of material shall stop until such leaks are fixed.
19) Once a section is complete, piping and heavy equipment shall be removed or shifted to a new section
and the area graded and dressed to final approved slopes.
20) Land -based equipment necessary for beach fill work shall be brought to the site through existing
accesses. Should the work result in any damage to existing accesses, the accesses shall be restored to
pre -project conditions immediately upon project completion in that specific area
NOTE: The permittee is advised that any new access site would require a modification of this permit.
21) Where oceanfront development exists at elevations nearly equal to that of the native beach, a low
protective dune shall be pushed up along the backbeach to prevent slurry from draining towards the
development.
22) Dune disturbance shall be kept to a minimum. Any alteration of existing dunes shall be coordinated with
the Division of Coastal Management as well as the appropriate property owner(s). All disturbed areas
shall be restored to original contours and configuration with reference to the surveyed normal high water
line and shall be revegetated immediately following project completion in that specific area.

Town of Sunset Beach
ADDITIONAL CONDITIONS
Maintenance Clause
Permit No. 79-19
Page 4 of 5
23) The Division of Coastal Management shall be notified in writing at least two (2) weeks in advance of
any maintenance excavation authorized by this permit, and such notification shall include:
A. The number of the original permit.
B. A statement that no dimensional changes are proposed.
C. A copy of the original permit plans with cross -hatching indicating the area to be excavated, the
area to be used for spoil disposal, and the estimated amount of material to be removed. The
location, design and holding capacity of the spoil disposal site shall be approved by a
representative of the Division prior to the initiation of any maintenance dredging activities.
D. The date of map revision and the pernittee's signature shown anew on the original plan.
General
24) The permittee and/or his or her contractor shall meet with a representative of the Division prior to
initiation of any phase of this project.
25) This permit shall not be assigned, transferred, sold, or otherwise disposed of to a third parry without the
written approval of the Division of Coastal Management.
26) No attempt shall be made by the permittee to prevent the full and free use by the public of all navigable
waters at or adjacent to the authorized work.
27) This permit does not authorize the interference with any existing or proposed Federal project, and the
permittee shall not be entitled to compensation for damage to the authorized structure or work, or injury
which may be caused from existing or future operations undertaken by the United States in the public
interest.
28) The permittee shall obtain any necessary authorizations or approvals from the US Army Corps of
Engineers prior to initiation of any permitted activity. Unless specifically altered herein, the permittee
shall adhere to all conditions of the Federal approval.
29) The permittee and/or his contractor shall provide for proper storage and handling of all oils, chemicals
hydraulic fluids, etc., necessary to carry out the project.
30) This permit does not authorize any permanent or long-term interference with the public's right of access
and/or usage of all State lands and waters.
31) The permittee shall make every effort possible to minimize any negative impacts of trucks and
construction equipment on roadway and pedestrian traffic. The permittee should also ensure that the
ability of individuals to access and enjoy the beach is not impeded outside of the construction limits.
NOTE: This permit does not eliminate the need to obtain any additional state, federal or local permits,
approvals or authorizations that may be required.

Town of Sunset Beach Permit No. 79-19
Page 5 of 5
ADDITIONAL CONDITIONS
NOTE: Future development of the permittee's property may require a modification of this permit.
Contact a representative of the Division at [phone] prior to the commencement of any
such activity for this determination.
NOTE: The N.C. Division of Water Resources assigned the project DWR Project No. 2002-0158v2.
NOTE: The U.S. Army Corps of Engineers assigned the project Action ID SAW-2019-01155.
NOTE: An application processing fee of $475 was received by DCM for this project. This fee also
satisfied the Section 401 application processing fee requirements of the Division of Water
Resources.

14
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
IN THE MATTER OF:
PETITION FOR VARIANCE
BY TOWN OF SUNSET BEACH
BEFORE THE NORTH CAROLINA
COASTAL RESOURCES
COMMISSION
CRC-VR-19-09
FINAL AGENCY DECISION
On December 19, 2019, Petitioner Town of Sunset Beach submitted a request for a
variance from 15A N.C. Admin. Code 07H .0208(b)(1)(F) to allow maintenance dredging of -6
feet Mean Low Water ("MLW") for S. Jinks Creek and the Bay Area and -5 feet MLW for the
Finger Canals as more specifically identified in Petitioner's CAMA Major/ Dredge & Fill
Application. Pursuant to N.C. Gen. Stat. § 113A-120.1 and 15A N.C. Admin. Code 7J .0700, et
seq., this matter was heard on oral arguments at the regularly scheduled meeting of the North
Carolina Coastal Resources Commission ("Commission") on February 12, 2020 in Beaufort,
North Carolina. Assistant General Counsel Christine A. Goebel, Esq. appeared for Respondent
Department of Environmental Quality, Division of Coastal Management ("DCM"). Attorney G.
Grady Richardson, Jr., Esq. appeared on behalf of Petitioner Town of Sunset Beach.
When reviewing a petition for a variance, the Commission acts in a quasi-judicial
capacity. Riggings Homeowners, Inc. v. Coastal Resources Com'n, 228 N.C. App. 630, 652, 747
S.E.2d 301, 314 (2013) (Commission has "judicial authority to rule on variance requests []
`reasonably necessary' to accomplish the Commission's statutory purpose."); see also
Application of Rea Const, Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1968) (discussing Board
of Adjustment's quasi-judicial role in allowing variances for permits not otherwise allowed by
ordinance). In its role as judge, the Commission "balance[es] competing policy concerns under
CAMA's statutory framework." Riggings, 228 N.C. App. at 649 n.6, 747 S.E.2d at 312.

0.
Petitioner and Respondent DCM, the parties appearing before the Commission, stipulated
to facts and presented relevant documents to the Commission for its consideration during the
hearing on the variance request. See e.g, N.C. Admin. Code 15A 07J .0702(a). If the parties had
been unable to reach agreement on the facts, the North Carolina Office of Administrative
Hearings would have held a full evidentiary hearing to create a record for the Commission to use
in making its decision. Id. 07J .0702(d). Here, as in any court, the parties appearing before the
decision -maker are responsible for developing and presenting evidence on which the
Commission makes its decision. In this case, the record on which the Commission's final agency
decision was made includes the parties' stipulations as to relevant facts, the documents provided
to the Commission by the parties, and the arguments of the parties. In addition, the Commission
reviewed and considered approximately fifty-five written comments submitted by the public
which represented opinions both for and against the variance request.
FACTS STIPULATED TO BY PETITIONER AND RESPONDENT DCM
Petitioner is the Town of Sunset Beach ("Petitioner" or "Town"), a North
Carolina Municipality created by the General Assembly in 1963. The
Town is represented in this variance by Town Attorney Grady Richardson.
2. The site of the proposed development ("Site") are approximately 18 acres
encompassing the waterbodies know as Jinks Creek, the Bay Area, the
Feeder Channel, and Finger Canals (A through D as shown on the attached
map). The areas where dredging work is proposed are largely submerged
lands owned by the state and held in public trust, and are within the
Town's borders or its Extra Territorial Jurisdictional Area.
The water bodies which make up the Site are classified as SA, High
Quality Waters ("HQW ') by the Environmental Management
Commission. The Finger Canals A-D and the Feeder Channel are closed to
the harvest of shellfish by the DMF-Shellfish Sanitation Program, but the
waters of the Bay Area and South Jinks Creek are open to the harvest of
shellfish. None of the water bodies are classified as a Primary Nursery
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Area by the Marine Fisheries Commission, but the area just north of the
South Jinks Creek dredge area is a PNA.
4. The proposed dredging work would take place in the Estuarine Waters,
Public Trust Areas, and Estuarine Shorelines sub -category of the Coastal
Shorelines Areas of Environmental Concern ("AECs"). The proposed
deposition of beach compatible sand would take place in the Ocean
Hazard AEC. Pursuant to N.C.G.S. 113A-118, CAMA/D&F permit
authorization is required for the proposed development.
Aerial and ground -level photographs of The Site were part of the
Powerpoint presentation presented to the Commission. Historic aerial
photographs show the movement of the shoal which is now located within
part of the area proposed for dredging.
6. As seen in the application materials, Jinks Creek (both North and South)
connects Tubbs Inlet to the AIWW and provides navigable access for the
Canals, the Feeder Channel and the Bay Area. Where the Feeder Channel
connects to Jinks Creek is where the creek is generally divided into north
and south.
Based on historic aerial photography, it appears the Finger Canals and
Feeder Channel were first excavated sometime around 1970, before the
enactment of the Coastal Area Management Act ("CAMA") and just
following the 1969 enactment of the State Dredge & Fill Law ("D&F"). It
appears that all of the areas proposed for dredging have been dredged
previously. Some areas were dredged prior to the CAMA so no permits
exist/could be located for these areas. Past permits identified include
CAMA Major Permit No. 45-02 for maintenance dredging of the Finger
Canals and Feeder Channel to -5.2' MLW and CAMA Major Permit No.
211-85 which also authorized maintenance dredging of the Finger Canals
and Feeder Channel. A summary of the permit history compiled by DCM
Staff is found in the DCM Field Investigation Report.
The Petitioner and its agent had significant contact with resource agencies
before the CAMA Major/D&F Permit application was submitted,
including five pre -application meetings over two years.
9. Through the pre -application process and in response to agency concerns
regarding shellfish resources in North Jinks Creek, the Petitioner elected
to remove North Jinks Creek from the proposed dredging.
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41
10. As part of the pre -application process, on February 12, 2019, DMF sent a
memo to DCM requesting additional information from the Town prior to
the application submittal, including a shellfish relocation plan.
11. On or about April 12, 2019, DCM received Petitioner's CAMA
Major/D&F Permit application (following an initial draft application on
March 22, 2019), and it was deemed complete on June 17, 2019.
Petitioner's authorized CAMA agent is Moffatt & Nichol, Inc. Petitioner
proposed the maintenance excavation of approximately.10,650 linear feet
of South Jinks Creek, the Bay Area, the Feeder Channel and Finger Canals
A-D to a maximum depth of -6' MLW (-5'+1' over dredge allowance) in
all areas except to -5' MLW (4' +1' over dredge) in the. Finger Canals.
The average water depths in the dredge footprint vary, as shown on the
attached depth profiles which were taken every 200' feet in the original
proposed dredge footprint. An estimated 40,500 cubic yards (CY) of
beach compatible material will be dredged from South Jinks Creek, and an
additional 48,600 CY of non -compatible material will be removed from
Finger Canals A-D, the Feeder Channel system and Bay Area. The
compatible dredge material will be placed via temporary pipeline to an
8.5-acre area of the oceanfront beach between 5th and 12th Streets on
Sunset Beach, and non -compatible material will be placed in an upland
landfill facility. A 10' dredge buffer from any Coastal Wetland was also
proposed by Petitioner in response to agency concerns.
12. As part of their application, Petitioner submitted a Sediment Analysis for
the beach compatible sand deposition proposed, a Jinks Creek Shellfish
Survey, the Essential Fish Habitat ("EFH") and Biological Assessments
(BA") required by federal permitting, a Manatee Avoidance Guideline,
and a Section 106 report per the National Historical Preservation Act.
Copies of these documents are part of the application.
13. As part of the CAMA/D&F Major Permit process, notice of the proposed
dredging project was sent to adjacent riparian neighbors. In this case,
Petitioner sent notice to all property owners adjacent to the waterbodies
where dredging was proposed, as well as those lots adjacent to where spoil
deposition is proposed on the oceanfront and those owners of property
where disposal/pipes will be laid after securing easements. There are
emails between DCM counsel and the authorized agent regarding notice
attempts.
14. As part of the CAMA/D&F Major Permit process, notice of the proposed
dredging project was given to the general public through on -site posting
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and through the June 26, 2019 publishing of notice in the Wilmington Star
Newspaper.
15. Many letters and emails were received by DCM related to this project, and
included both objections and comments in support of the project,
including multiple letters from some individuals. The Commission was
provided with these letters.
16. As part of the CAMA/D&F Major Permit process, copies of the permit
application materials and DCM's Field Investigation Report were sent to
state and federal resource agencies for review and comment. Relevant
comments from these agencies are described in the facts to follow.
17. On or about June 21, 2019, DCM's Field Representative Tara MacPherson
submitted her comments to the Major Permitting staff, recommending that
the proposed dredging depths were inconsistent with 15A NCAC 7H
.0208(b)(F) which states "Any canal or boat basin shall be excavated no
deeper than the depth of the connecting waters" and that the permit should
be denied or the inconsistent dredge areas be conditioned out of a permit.
18. On June 21, 2019, the Division of Energy, Mineral and Land Resources
("DEMLR") commented that the spoil deposition on the two acres of high
ground will require an Erosion and Sediment Control plan approval, and
that a stormwater application will be necessary for review and a possible
exemption.
19. On July 3, 2019, DCM received an email from the Army Corps of
Engineers to staff of other commenting federal agencies indicating that,
due to the large size of the application, a summary was being provided in
the email, alang with a link to the materials, and a summary of federal
considerations.
20. On July 19, 2019, the Division of Marine Fisheries ("DMF") submitted its
response to the project, indicating that it approved of the project with
conditions, specifically set forth in its memo, including a shellfish
relocation plan for shellfish resources in the proposed dredge cut and its
buffer area, which is condition 7 on the Permit. DMF also suggested a
dredging moratorium period of April 1 to September 30, which is
condition 1 on the Permit. As part of this variance process, DCM reached
out to DMF to ask about proposed dredging. Director Murphey indicated
that "the proposed dredging of -5 to -6 ft. NLW as opposed to 2 ft. does
not cause any fisheries or habitat concerns for us. Our principal concern
with the proposal in the past was the dredging of North Jinks Creek to the
Me

Fl
waterway which contained significant shellfish habitat. My understanding
was this approach [dredging North Jinks Creek] was later removed from
the proposal."
21. On July 23, 2019, DCM was copied on a letter from the North Carolina
Coastal Federation ("NCCF") to Col. Clark of the Army Corps of
Engineers, providing comment on the proposed project. Also included in
the materials provided to the Commission is the August 9, 2019 response
by the Town's authorized agent to Col. Clark.
22. On August 1, 2019, the Division of Water Resources indicated it did not
object to the project and that it.had issued the 401 Water Quality
Certification that same day.
23. DWR awarded a grant to the Town of Sunset Beach on May 28, 2019,
using money from the Shallow Draft Inlet Fund for this proposed project.
24. On August 2, 2019, the Army Corps of Engineers provided comments to
DCM and the Town regarding the proposed dredging, a copy of which is
attached. The Corps representative indicated that the National Marine
Fisheries Service had no objection to the work as proposed as stated in its
August 2, 2019 letter, but the US Fish and Wildlife Service did not concur
with the Corps' effects determinations and requested they be changed to
incorporate USFWS's July 29, 2019 written comments, including an
updated Biological Assessment (`BA").
25. On August 6, 2019, DCM's District Planner found the proposed project
consistent with the Town's Land Use Plan.
26. On August 9, 2019, the Town's authorized agent provided an updated
Biological Assessment to the Corps.
27. On August 9, 2019, the NC Wildlife Resources Commission ("WRC")
provided a written response indicating appreciation for the significant pre -
application coordination and meetings with the Town, and also suggesting
timing conditions intended to minimize and avoid impacts to sea turtles,
endangered bird species, and marine life in the nearby PNA habitat.
28. On August 27, 2019, the Corps notified the Town and review agencies that
it would now process the permit application through a Standard Permit
(SP) rather than a General Permit, at the federal level, due to significant
public interest (including the volume of comments during the CAMA
M

review process) and the need for more widespread notification to the
public.
29. The depth in Jinks Creek between Tubbs Inlet and the Feeder Channel is
approximately 0' MLW (as shown on the revised site plan approaching
Tubbs Inlet). The depth in North Jinks Creek (between the Feeder Channel
and the AIWW) is approximately -2' MLW in the area where North Jinks
Creek meets the AIWW and approximately 1,200'-1,400' down Jinks
Creek from the confluence with the AIWW. Depth profiles of this area at
200' intervals are included in the materials provided to the Commission.
30. On October 28, 2019, DCM issued CAMA/D&F Major Permit No. 79-19
(the "Permit") to the Town, but, along with other conditions, conditioned -
out the proposed -6' MLW dredging depths and authorized a maximum
dredging depth of -2' MLW in order to comply with 15A NCAC 7H
.0208(b)(F) which is the "connecting waters" rule. The Permit and
Condition 2 restricts the maximum dredging depth of any dredging to -2'
MLW.
31. On December 20, 2019, Petitioner filed its Variance Request and proposed
supporting materials through counsel, requesting that the Commission
hear this matter at its February 2020 meeting. Petitioner seeks a variance
from the "connecting waters" rule of the Commission at 15A NCAC 7H
.0208(b)(F) in order to dredge to the depths proposed in Petitioner's
CAMA Major/D&F Application (-6' MLW for all areas except -5' MLW
for the Finger Canals).
32. As part of the variance process, the Commission's rules at 15A NCAC 7J.
0701(c)(7) requires that a variance petitioner send notice to adjacent
property owners and persons who submitted written comments to DCM
during the permit review process so they are aware of the Petition. DCM
accepts written comments to include in the stipulated exhibits for the
Commission's consideration. In this case, there were approximately 55
such comments received by a January 15, 2020 deadline communicated to
the commenting parties. Please note: Due to the number of comments,
DCM cannot confirm if the comments received are all from those who
commented during permit review or if the comment website information
has been passed on to others.
33. A comment letter was received on January 15, 2019 from Southern
Environmental Law Center (SELC), which responds to the Town's
variance petition.
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EXMBITS PROVIDED TO COMMISSION BY PETITIONER AND RESPONDENT DCM
1 of 4 Main Stipulated Exhibits, including:
1. Map of Town of Sunset Beach limits and ETJ
2. Site map from Petitioner showing/labeling the waterbodies
3. PNA maps of the area
4. DCM Field Investigation Report
5. February 12, 2019 DMF memo re: shellfish relocation plan
6. Spread sheet and information showing notice to adjacent riparian owners and
emails discussing notice attempts
7. Newspaper Notice information
8. January 21, 2019 comments from DCM Field Representative
9. June 21, 2019 DEMLR comments
10. July 3, 2019 email from Corps to federal commenting staff
11. July 19, 2019 comments from DMF
12. July 23, 2019 comments from NCCF to Corps
13. August 9, 2019 response to NCCF comments to Corps from Petitioner's agent
14. August 1, 2019 comments and copy of 401 from DWR
15. Copy of Town's grant application and grant contract with DWR
16. August 2, 2019 comments from the Corps, enclosing NMFS August 2 letter and
USS FWS letter of July 29, 2019 not -concurring requesting changes to the EA
17. August 6, 2019 comments of DCM district planner
18. August 9, 2019 revised BA with transmission email
19. August 9, 2019 comments from WRC
20. August 27, 2019 email from Corps indicating change to Standard Permit from
General Permit
21. Depth Profiles of Jinks Creek
22. CAMA Major/D&F Permit No. 79-19
23. Powerpoint Presentation with ground -level and aerial photographs of the site
including over time to show shoaling changes
2 of 4 Separate Stipulated Exhibits, includina: Petitioner's CAMA Major Permit Application
including drawings, sediment analysis, Shellfish Survey, EFH, BA, Manatee Avoidance,
Section 106
3 of 4 Separate Stipulated Exhibits: Comments received during permit review
4 of 4 Separate Stipulated Exhibits: Comments received through January 14, 2020 relating to the
variance request. The comments received were both in favor of and opposed to the
requested variance. In those instances in which undersigned counsel was able to identify
contact information, either an address or email address, a copy of this final agency
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decision was provided to the persons who commented in opposition to the requested
variance. See list provided in the attached Certificate of Service for the final agency
decision.
Additional documents provided to the Commission by the parties on February 2, 2020,
including:
December correspondence from the Town's agent to the USACE,
addressing each individual comment received by the USACE
during the public comment part of the ongoing processing of the
Town's Corps permit application for the proposed dredging
project.
2. January 31, 2020 letter from the USACE to the Town's agents
regarding the comments received by the Corps in connection with
the ongoing processing of the Town's Corp permit application for
the proposed dredging project.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and the subject matter.
2. All notices for the proceeding were adequate and proper.
3. Petitioner has met the requirements in N.C.G.S. § 113A-120.l(a) and 15 NCAC
07J .0703(f) which must be found before a variance can be granted asset forth below.
a. Strict application of 15A N.C. Admin. Code 7H .0208(b)(1)(F) will cause
unnecessary hardship.
Petitioner seeks a variance from the Commission's rule found at 15A N.C. Admin. Code
7H .0208(b)(1)(F), which states: "Any canal or boat basin shall be excavated no deeper than the
depth of the connecting waters." (Hereinafter referred to as the "connecting waters rule.") This
rule was the basis for DCM conditioning the Permit to authorize dredging to only -2' Mean Low
Water ("MLW") - the depth of the connecting waters. The purpose of this rule, as codified by the

Commission, is to prevent water from collecting in sinks and stagnating due to reduced flushing
in canals. The connecting waters rule is designed to limit negative impacts on water quality and
marine resources as a result of the accumulation of pollutants, low dissolved oxygen, and debris
which may collect in the deeper areas.
Among the comments received on the variance request were concerns that without a
thorough evaluation of previous dredging events, the impact of the proposed dredging on the
surrounding environments cannot be assessed.. Furthermore, concerns were expressed that the
proposed dredging has the potential for negative environmental effects and it cannot be said that
the "current maintenance operations will not create any adverse impacts." See January 15, 2020
letter to Dr. Braxton Davis, Director DCM from Geoffrey R. Gisler, Senior Attorney, Southern
Environmental Law Center and attached July 15, 2019 Letter to Braxton Davis from Kerri Allen,
North Carolina Coastal Federation. In addition, the North Carolina Coastal Federation argued
that because Jinks Creek proper, while not a designated Primary Nursery Area ("PNA"), is
surrounded by PNAs, and it is "highly likely that Jinks Creek also functions as PNA." For this
additional reason, some commenters requested that the variance request be denied.
After reviewing the comments received from individuals and other agencies, DCM
explained in its Staff Recommendation, that if the depth the Town was allowed to dredge was
limited due to strict application of the connecting waters rule, the Town would need to dredge
more frequently to maintain access. DCM explained that more frequent dredging could have
greater impacts on the coastal environment than less frequent, but deeper, dredging. The
Commission agrees with Petitioner and DCM that dredging to a deeper depth (as proposed) may
increase the time interval between dredging events (as the deeper footprint can hold shoaling
-10-

sediment) and may be less impactful to coastal resources (particularly larval fish) than more
frequent dredging events that might be required to maintain a -2' MLW channel.
The Commission further notes that in its Staff Recommendation, DCM pointed out that
DWR's issuance of the 401 Water Quality Certification for the project as originally designed
indicates little to no concerns about water quality in this area due to its close proximity to the
inlet and rapid flushing rate. Similarly, the Commission's review of the materials submitted
indicates that other relevant marine resource agencies, including DMF, WRC, and the National
Marine Fisheries Service (NMFS), did not indicate any potential for significant adverse impacts
to marine habitats from the revised project.
The Commission further notes that the revised project is different than that initially
proposed. Upon review of the initial proposal, various resource agencies had expressed concerns
about impacts to North Jinks Creek, which is a designated PNA and also holds significant
shellfish resources. Given these concerns and the Commission's rules restricting new dredging in
PNAs, the proposed dredging of North Jinks Creek was removed from the application and is not
included in this variance request.
In their submissions, Petitioner and DCM indicate that strict application of the connecting
waters rule would cause Petitioner unnecessary hardships such as increased shoaling, and the
need for more frequent dredging to maintain access with the potential for increased adverse
impacts to the marine environment. The Commission agrees. For these reasons, the Commission
affirmatively finds that Petitioner has shown that strict application of its connecting waters rule
would cause unnecessary hardship and Petitioner has met the first factor without which a
variance cannot be granted.
mom

b. Petitioner has demonstrated that the hardship results from conditions
peculiar to Petitioner's property.
The Commission affirmatively finds that Petitioner has demonstrated that the hardship
results from conditions peculiar to the property. Specifically, the area of South Jinks Creek is a
waterbody adjacent to an ocean inlet with higher natural tidal flushing dynamics compared to a
traditional canal system or boat basin. In addition, the rapid shoaling of the South Jinks Creek
area, as shown on the aerial photos provided to the Commission, could result in significant
impairment of recreational boating in the project area and/or require more frequent dredging if
limited to -2' MLW depths. While rapid shoaling on its own is not necessarily a peculiar
condition in a dynamic coastal system such as this, the rapid shoaling in this area contributes to
the conditions peculiar to this property causing Petitioner's hardship.
Accordingly, the Commission affirmatively finds that Petitioner has demonstrated that
the hardship results from conditions peculiar to the Site and has met the second factor required
for the grant of its request for a variance.
C. Petitioner has demonstrated that the hardship does not result from
Petitioners own actions.
The Commission affirmatively finds that Petitioner's removal of the initially proposed
dredging of the PNA habitat in North Jinks Creek during the pre -application coordination
process resolved most resource agency concerns with this project. Indeed, DMF did not object to
the project or its originally proposed dredge depths as long as certain conditions were applied,
including a shellfish relocation plan, buffers between the dredge footprint and coastal wetlands,
and seasonal dredge windows. DWR issued the 401 Water Quality Certification on August 1,
2019. Neither NMFS nor WRC objected to the work as proposed.
-12-

The Town is attempting to maintain historic access to recreational waterways while still
protecting coastal resources. In comparison with the alternative of dredging the channel to -2'
MLW as now authorized by the Permit, the Town's proposal to dredge deeper but less frequently
should result in reduced impacts. The Commission notes Petitioner's willingness to minimize the
frequency and area of the proposed dredging, which is designed to prevent adverse impacts. For
these reasons, the Commission affirmatively finds that Petitioner's actions did not cause the
hardship and further finds that Petitioner has demonstrated that it has met the third factor required
for a variance.
d. Petitioner's request is consistent4ith the spirit, purpose and intent of the
rule, will secure public safety and welfare, and preserve substantial justice.
Petitioner has demonstrated (a) that the requested variance is consistent with the spirit,
purpose and intent of the Commission's rules, (b) that it will secure public safety and welfare,
and (c) that it will preserve substantial justice. The principal purposes of these rules is to protect
coastal resources, specifically PNAs. For the reasons set forth in more detail below, the
Commission affirmatively finds that Petitioner has demonstrated that the requested variance
complies with each of the requirements of this rule.
Specifically, the Commission finds that the variance meets the spirit, purpose and intent
of the Commission's connecting waters rule. 15A N.C. Admin. Code 7H .0208(b)(1)(F) states
that "Any canal or boat basin shall be excavated no deeper than the depth of the connecting
waters." The purpose of this rule is to prevent stagnant water from collecting in sinks, thereby
reducing the flushing rate in canals, and resulting in an accumulation of pollutants and low
dissolved oxygen levels, along with associated impacts to living marine resources.
- 13 -

In this case, resource agencies have assessed the proposed project and indicate that given
the Site conditions adequate flushing will occur. Based on its assessment, DWR issued a 401
Water Quality Certification. Moreover, approval.of the project by DMF, WRC and NMFS is
further evidence that the impact to marine resources resulting from the dredge depths as
proposed have been minimized. The U.S. Army Corps of Engineers has not made a final permit
decision (which is typical when a CAMA variance is sought), the Corps staff has not indicated
additional concerns. The Commission further notes that in DCM's Recommendation, it noted
that due to the site's proximity to Tubbs Inlet, dredging deeper but less frequently will result in
fewer negative impacts to marine resources (specifically larval fish ingress/egress). For these
reasons, the Commission affirmatively finds that the requested variance is consistent with the
spirit, purpose and intent of the Commission's prohibition against dredging boat basins deeper
than connecting waters since significant adverse impacts from water stagnation are not likely to
occur at this Site.
Second, the Commission finds that public safety and welfare will be secured by
improving the safety of navigation for more of the tidal cycle as a result of the deeper dredging.
In addition, Public safety and welfare will also benefit from the likely reduction in needed
dredging cycles and their resulting impacts to fisheries resources due to the increased capacity
for the dredging footprint to hold future shoaling sediment. The Permit has been conditioned to
require the development and implementation of an approved shellfish relocation plan, buffers
between the proposed dredging and existing coastal wetlands resources, and regular dredging
season windows. This approach is designed to reduce impacts while improving navigation.
The Commission is aware that concerns have been raised about flooding and erosion
14-

resulting from the proposed dredging. The Commission notes that the footprint of the proposed
dredging is similar to the location of South links Creek in 2008 aerial photos provided to the
Commission. Therefore, the Commission expects that there would be similar relationships, if
any, between channel location, shoreline erosion, and flooding potentials along the northern
shoreline of Sunset Beach. Currently, Palm Cove (at the far eastern end of Sunset Beach) is
experiencing significant erosion. This erosion has been ongoing. The Commission is not
persuaded by the opinions provided that the proposed dredging will increase any erosion in this
area. To the extent that there continues to be erosion in the Palm Cove area, on balance the
improved navigation and other benefits of the proposed dredging outweigh any concerns about
future erosion impacts to this area.
Finally, the Commission affirmatively finds that substantial justice will be preserved by
balancing protection of the resources with protection of recreational navigation, both identified
as important goals of the Commission's rules and the CAMA. Therefore, the Commission
affirmatively finds that Petitioner has met the fourth factor required by N.C. Gen. Stat. § 11 3A-
120. 1 (a).
THEREFORE, the requested variance from is GRANTED. The granting of this variance
does not relieve Petitioner of the responsibility for obtaining any other required permits from the
proper permitting authority.
FURTHERMORE, the Commission's decision to grant the variance is based upon the
record provided to the Commission as described above. However, the Commission is not bound
by the parties' stipulation of facts. The Commission reserves the right to reconsider the granting
Me

of this variance and to take any appropriate action should it be shown that there are other relevant
facts or documents relating to this variance request.
This the 25a' day of February 2020.
M. Renee Cahoon Chair
Coastal Resources Commission
16-

CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing FINAL AGENCY DECISION
upon the parties by the methods indicated below:
Attorney for Petitioner:
Law Office of G. Grady Richardson, Jr., P.0
1908 Eastwood Road, Suite 224
Lumina Station
Wilmington, NC 28403
Consultant for Petitioner
Robert Neal, PE
Moffatt & Nichol
4700 Falls of Neuse, Suite 300
Raleigh, NC 27609
Attorney for NC Division of Coastal Management
Christine A. Goebel
Assistant General Counsel
NC Department of Environmental Quality
217 West Jones Street
Raleigh, NC 27603
NC Division of Coastal Management
Braxton C. Davis, Executive Director
Angela Willis, Administrative Assistant
400 Commerce Ave.
Morehead City, NC 28557
Town Administrator and Planning Director
Hiram J. Marziano, II
700 Sunset Blvd. N.
Sunset Beach, NC 28466
Persons providing Comments in Opposition to the
variance request as listed on the attached Exhibit A
17-
METHOD OF SERVICE
U.S. Mail and Electronically:
[e-mail]
U.S. Mail
Electronically:
[e-mail]
Electronically:
[e-mail]
[e-mail]
Electronically:
[e-mail]
Certified Mail, Return Receipt Requested

Exhibit A
Richard Cerrato Mac Nelson
517 Twisted Oak Lane 401 30h Street
Sunset Beach, NC 28468 Sunset Beach, NC 28468
Richard and Margie Dickey Lynn Nesmith
707 W. Main 210 Shoreline Drive East
Sunset Beach, NC 28468 Sunset Beach, NC 28468
Michael Evans Todd Miller, Executive Director
908 Resort Circle North Carolina Coastal Federation
Sunset Beach, NC 28468 3609 N. C. 24
Newport, NC 28570
Geoffrey R. Gisler, Senior Attorney Kerri Allen and Tracy Skrabal
Southern Environmental Law Center North Carolina Coastal Federation
601 West Rosemary Street, Suite 220 309 W. Salisbury Street
Chapel Hill, NC 27516-2356 Wrightsville Beach, NC 28480
Janice Harris, Councilwoman James Skiff
206 North Shore Dr. W. 414 33'd Street
Sunset Beach, NC 28368 Sunset Beach, NC 28468
Richard Hilderman, Ph.D Sam Swanson
407 37`h Street 29 Hunters Lane
Sunset Beach, NC 28468-4121 Hendersonville, NC 28791
Edwin W. Janes Ann & Rollin Tarter
403 37`h Street 410 37`h Street
Sunset Beach, NC 28468 Sunset Beach, NC 28468
Ted Janes Jacqueline M. Trovato and
302 Roling Knoll Drive James C. Thomas, Jr.
Bel Air, MD 21014 1520 North Shore Drive
Sunset Beach, NC 28468
Barry R. Lentz, Ph. D. Monica Vogel
179 Tradescant Drive 720 Sunset Boulevard N.
Chapel Hill, NC 27517 Sunset Beach, NC 28468
Gary Merritt John Wells
646 Oyster Bay Drive 604 Main Street East
Sunset Beach, NC 28468 Sunset Beach, NC 28468
Dwight Willis
140 Carolina Avenue
Holden Beach, NC 28462

This the 25'" day of February, 2020
Mary L. Lucasse
Special Deputy Attorney General and Commission Counsel
N.C. Department of Justice
P.O. Box 629
Raleigh, N. C. 27602
Item

REPLY TO:
STEIN STATE OF NORTH CAROLINA MARY L. LUCASSE
JOSH
ATTORNEYJOSHSTEIN DEPARTMENT OF JUSTICE ENVIRONMENTAL DIVISION
[phone]
MLUCASSE@Q NCDOJ.GOV
February 25, 2020
Attorney for Petitioner: U.S. Mail and Electronically:
[e-mail]
Law Office of G. Grady Richardson, Jr., P.0
1908 Eastwood Road, Suite 224
Lumina Station
Wilmington, NC 28403
Re: Variance Request for Coastal Area Management Act (CAMA) Permit,
CRC-VR-20-09
Dear Mr. Richardson:
At its February 12, 2020 meeting, the Coastal Resources Commission granted Petitioner
the Town of Sunset Beach's request for a variance from 15A NCAC 07H .0208(b)(1)(F) to allow
maintenance dredging in specific areas in Sunset Beach as set out in more detail in the variance
request. Attached is a copy of the final agency decision signed by the Chair of the Coastal
Resources Commission. Thank you for agreeing to accept service of the Final Agency Decision
on behalf of Petitioner. Prior to undertaking the dredging for which a variance was sought,
Petitioner must first obtain an updated CAMA permit from the local permitting authority or the
Division of Coastal Management.
If Petitioner, or any other person, does not agree to the terms of the variance as issued, they
may appeal the Coastal Resources Commission's decision by filing a petition for judicial review
in superior court as provided in N.C. Gen. Stat. § 150B-45 within thirty days after receiving the
final agency decision. A copy of the file marked petition for judicial review must be served on the
Coastal Resources Commission's agent for service of process at the following address:
William F. Lane, General Counsel
Dept. of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
The Commission reserves the right to raise any issue in opposition to an appeal, including
standing. If any of the persons receiving a copy of this letter and final agency decision files a
petition for judicial review, I am requesting that a copy of the petition for judicial review also be
served on me.
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. 0. Box 629, RALEIGH, NC 27602-0629

G. Grady Richardson, Jr., Esq.
February25, 2020
Page 2
If you or any of the persons copied on this correspondence have any, questions, please
feel free to contact me.
Sincerely,
Mary L. Lucasse
Special Deputy Attorney General and
Counsel for the Coastal Resources Commission
cc: M. Renee Cahoon, Commission Chair, electronically
All persons identified in the Certificate of Service for the final agency. decision.
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. BOX 629, RALEIGH, NC 27602-0629

DCM Coordinator: J iN Permit #: 77 V /7 *O' d
DCM Field Offices
Elizabeth City
Morehead City
US ACOE Offices:
Washington:
Wilmington:
Cultural Resources:
Public Water Supply:
Marine Fisheries:
NC DOT:
Shellfish Sanitation:
State Property:
DEMLR/DWR:
MAH.ING DISTRIBUTION SHEET
5(iivt bZ'bIAIG
Z�«r
Washington (with revised work plan drawings)
Wilmington (ar4 {OBJECTIONS )
(a�A
Raleigh Bland (Beaufort, Camden, Chowan, Craven, Hertford, Hyde, Perquimans,
Tyrrell)
Josh Pelletier (Bertie, Currituck, Dare, Gates, Pamlico, Pasquotank, Washington)
Tom Steffans (NC DOT- Beaufort, Carteret, Craven, Pamlico)
Bill Biddlecome (NC DOT -Remainder ECity/Washington District)
Greg Curry (Brunswick, New Hanover)
L�iz Hair (Carteret, Onslow, Pender)
Brad Shaver (NCDOT-Brunswick, New Hanover, Onslow, Pender)
Renee Gledhill -Earley at [e-mail] }
Heidi Cox (WIRO)
Anne Deaton
David Hams
Shannon Jenkins / Sharon Gupton
Tim Walton / Mike Moser
Sheri Montalvo / Shelton Sullivan
Clif Whitfield (WARD)
Washington: Anthony Scarbraugh-401
Roger Thorpe-Stormwater
Garcy Ward- (NCDOT-Beaufort, Bettie, Camden, Carteret, Chowan, Craven, Currituck,
Dare, Gates, Hertford, Hyde, Pamlico, Pasquotank, Perquimans, Tyrrell, Washington)
Wilmington:
Wildlife Resources:
Natural Heritage Program
LPO:
Robb Mairs — 401 (Carteret, Onslow, Pender, Brunswick, New Hanover)
Christine Hall - Stormwater
Joanne Steenhuis - 401 (NCDOT-Brunswick, New Hanover, Onslow, Pender)
Maria Dunn (WARD) ,
Rodney Butler
(NCDOT) Travis Wilson