20090665 Ver 1_DCM Comments_20091228

NCDENR
North Carolina Department of Environment and Natura
Division of Coastal Management
Beverly Eaves Perdue, Governor James H. Gregson, Director
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Stuart Point
Mrs. Christine Point
300 Windchase Lane
Wilmington, NC 28409
Dear Mr. and Mrs. Point:
December 23, 2009
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Resources
Dee Freeman, Secretary
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DECl 8 2009
UfNk - WATER QUALITY
WETLANDS AND STORMWATER BRANCH
This letter is in response to your application for a Major Permit under the Coastal Area
Management Act (LAMA), in which authorization was requested to construct a concrete
boatramp and excavate a 475' long x 25' wide access channel in Whiskey Creek, in New
Hanover County. Processing of the application, which was received as complete by the Division
of Coastal Management's Wilmington Regional Office on April 16, 2009, is now complete.
Based on the state's review, the Division of Coastal Management has made the following
findings:
1) Primary Nursery Areas, which are officially designated and described by the North
Carolina Marine Fisheries Commission, are those areas in the estuarine and ocean
system where initial post larval development of finfish and crustaceans takes place.
2) The proposed project is located within a Primary Nursery Area (PNA).
3) The waters of Whiskey Creek are classified as SA HQW by the North Carolina
Division of Water Quality.
4) The proposed project involves the excavation of approximately 11,875 square feet
of shallow bottom within a designated Primary Nursery Area. The area does not
appear to have been previously dredged.
5) During the course of the joint State and federal permit application review process,
N.C. Division of Marine Fisheries stated that, "the project would cause a significant
adverse impact to the resources in the affected area and objects to the project." The
N.C. Wildlife Resources Commission concurred with the objections of the Division
of Marine Fisheries.
400 Commerce Avenue, Morehead City, North Carolina 28557
Phone: [phone] \ FAX: [phone] \ Internet: www.nccoastalmanagement.net
An Equal Opportunity \ Affirmative Action Employer - 50% Recycled \ 10% Post Consumer Paper
Mr. and Mrs. Point
December 23, 2009
Page 2 of 3
6) The Division of Water Quality denied the request for a water quality certification
for the project on October 29, 2009 due to the proposed project resulting in the
removal of the Best Usage of the SA HQW waters, thus conflicting with the Anti-
degradation Policy (15A NCAC 02B.0201).
7.) }rased upon the above referenced findings, the Division has determined that the
proposed project is inconsistent with the following rules of the Coastal Resources
Commission:
a) 15A NCAC 07H .0203, which states, "It is the objective of the Coastal
Resources Commission to conserve and manage estuarine waters, coastal
wetlands, public trust areas, and estuarine and public trust shorelines, as an
interrelated group of AECs, so as to safeguard and perpetuate their
biological, social, economic, and aesthetic values and to ensure that
development occurring within these AECs is compatible with natural
characteristics so as to minimize the likelihood of significant loss of private
property and public resources. Furthermore, it is the objective of the Coastal
Resources Commission to protect present common-law and statutory public
rights of access to the lands and waters of the coastal area."
b) 15A NCAC 07H.0206(c), which states "Management Objective. To
conserve and manage the important features of estuarine waters so as to
safeguard and perpetuate their biological, social, aesthetic, and
economic values; to coordinate and establish a management system capable
of conserving and utilizing estuarine waters so as to maximize their benefits
to man and the estuarine and ocean system."
c) 15A NCAC 07H.0208(a)(2)(B), which states "before receiving approval for
location of a use or development within these AECs, the
permit-letting authority shall find that no suitable alternative site or location
outside of the AEC exists for the use or development and, further, that the
applicant has selected a combination of sites and design that will have a
minimum adverse impact upon the productivity and biologic integrity of
coastal marshland, shellfish beds, beds of submerged aquatic vegetation,
spawning and nursery areas, important nesting and wintering sites for
waterfowl and wildlife, and important natural erosion barriers (cypress
fringes, marshes, clay soils)."
d) 15A NCAC 07H.0208(a)(2)(C), which states "Development shall not violate
water and air quality standards."
e) 15A NCAC 07H.0208(b)(1), which states that "Navigation channels, canals,
and boat basins shall be aligned or located so as to avoid primary nursery
areas, highly productive shellfish beds, beds of submerged aquatic
vegetation, or significant areas of regularly or irregularly flooded coastal
wetlands."
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Mr. and Mrs. Stuart Point
December 23, 2009
Page 3 of 3
f) 15A NCAC 07H.0601, which states "no development shall be allowed in
any AEC which would result in a contravention or violation of any rules,
regulations, or laws of the State of North Carolina or of local government in
which the development takes place."
Given the preceding findings, it is necessary that your request for issuance of a CAMA
Major Permit under the Coastal Area Management Act be denied. This denial is made pursuant
to N.C.G.S. 113A-120(a)(8) which requires denial for projects inconsistent with the state
guidelines for Areas of Environmental Concern or local land use plans, and N.C.G.S. 113-229
(c)(5) which requires denial for projects that will cause a significant adverse effect on wildlife or
freshwater, estuarine or marine fisheries.
If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve
appearing before an Administrative Law Judge who listens to evidence and arguments of both
parties and then makes a recommendation to the Coastal Resources Commission. Your request
for a hearing must be in the form of a written petition, complying with the requirements of
§15013 of the General Statutes of North Carolina, and must be filed with the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, within twenty
(20) days from the date of this letter. A copy of this petition should also be filed with this office.
Also, you are advised that as long as this state permit denial stands, your project must be
deemed inconsistent with the N.C. Coastal Management Program, thereby precluding the
issuance of federal permits for this project. The Federal Coastal Zone Management Act (CZMA)
gives you the right to appeal this finding to the U.S. Secretary of Commerce within thirty days of
receipt of this letter. Your appeal must be on the grounds that the proposed activity is (1)
consistent with the objectives or purposes of the CZMA, or (2) is necessary in the interest of
national security, and thus, may be federally approved.
Members of my staff are available to assist you should you desire to modify your
proposal in the future. If you have any questions concerning this matter, please contact Mr.
Doug Huggett at [phone], extension 212.
Sincerely,
es H. Greg son
cc: Colonel Jefferson M. Ryscavage - U.S. Army Corps of Engineers, Wilmington, NC
David Kennedy, Director - OCRM/NOAH, Silver Spring, MD
Dave Timpy, USACE
DCM - Wilmington