19961054 Ver 2_More Info Received_20091021

F-WAA
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
MEMORANDUM
October 20, 2009
TO: Chuck Wakild
Deputy Director, Division if Water Quality
FROM: Rick Shiver
Regional Supervisor
Wilmington Regional Office

Subject: Review of 401 Water Quality Certification application
Bennett Brothers Yachts, Inc. (BBYI)
New Hanover County, NC
Dee Freeman
Secretarv
OCT z i 2009
DENR - WATER QUALITY
WETWM AW STORINW W OMM
On October 7, 2009, you, Cyndi Karoly, Ian McMillan, Chad Coburn, Joanne Steenhuis, and
myself met via telephone conference regarding the application from Bennett Brothers Yachts,
Inc. for a 401 Water Quality Certification to allow new maintenance dredging within an existing
marina in the Northeast Cape Fear River. These waters are classified as SC by the DWQ and the
Division of Marine Fisheries has designated this area as Primary Nursery Area (PNA).
A 401 WQC was issued by the DWQ on January 6, 1997, for 0.35 acres on 404 impacts.
This certification was modified with a new 401 on February 7, 1997, to pull some of the
marina areas outside of the Army Corps (USACE) navigation channel. The application
for the 401 mentioned that the project site area being applied for was a Primary Nursery
Area.
• The 404 permit was issued on June 19, 1997 by the Army Corps under a General Permit
291. Condition `d' of the USACE's recommendations was that excavation should be
limited to the travel lift basin area and should not exceed twelve fee below the mean low
water (MLW) level.
• The CAMA Major Development permit was issued by the Division of Coastal
Management (DCM) on July 2, 1997.
• BBYI submitted a variance request to the Coastal Resources Commission on July 25,
1997, to allow for new dredging within the PNA for a travel lift basin area at the site.
Notes from a November 1997 meeting between BBYI and the NC Attorney General's
Office (representing the DCM) show that BBYI was aware that they would not be
allowed to conduct new dredging within the PNA at their facility.
NorthCarolina
North Carolina Division of Water Quality 127 Cardinal Drive Extension Phone [phone] Customer Service 1-877-623-67• Naturally
Wilmington Regional Office Wilmington, NC 28405-3845 FAX [phone] Internet: h2o.enr.state.nc.us
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
• The CRC granted the variance to dredge an area for a travel lift basin within the PNA on
December 3, 1997.
• On December 22, 2006, the renewed the previous CAMA permit and included the
following condition under "Excavation - Unless specifically altered herein, the
dimensions of the area to be dredged shall not exceed the footprint of the existing travel
lift, all as expressly and specifically set forth in the attached workplan drawings. Any
proposal to change the area to be dredged shall require permit modification."
On September 16, 2008, representatives from the DWQ, the USACE, the DCM, NC the
Division of Marine Fisheries (DMF), and the NC Wildlife Resources Commission
(NCWRC) met with BBYI about a new proposal to maintenance dredge approximately
5,000 square feet within the existing footprint of the marina. Notes from this meeting
show that BBYI was informed once again that new dredging within a PNA is not
allowed.
On January 7, 2009, BBYI was issued a Violation of the CAMA Major Development
Permit and the variance issued by the CRC for installation of unauthorized rip-rap.
Records do not show that the DWQ was notified of this violation until October 2009
upon reviewing the present application. However, both BBYI and the DCM noted that
the violation was resolved prior to the application.
The February 17, 2009 renewal of the CAMA permit mentions under Condition 2 that
"All conditions and stipulations of the active permit remain in force under this renewal.
• On July 1, 2009, the DWQ received the application for the proposed maintenance
dredging of 87,000 square feet of open waters within the footprint of the existing marina.
The DWQ placed the application on hold for additional information because authorizing
new dredging within a PNA would be a violation of 15A NCAC 02B .0220 (1) and also
15A NCAC 02B .0201. BBYI responded by stating that they were aware that new
dredging within a PNA is not allowable and that they were applying with the intention of
having the application denied. The DWQ again placed the application was placed on
hold for additional information with the indication that the application was headed
towards denial. BBYI submitted new information to the DWQ on September 2, 2009, for
the application, again requesting the DWQ to deny the application.
• On July 27, 2009, Rich Carpenter of the DMF objected to this application on the grounds
that the new dredging within a PNA would have significant adverse impact on the
estuarine resources in the project area.
• On August 12, 2009, the Molly Ellwood of the WRC objected to this application on the
same grounds as the DMF.
We feel that there is significant evidence to show that BBYI was aware prior to the construction
of their facility that the area was within a PNA. In addition, they were aware that no dredging
would be allowed within the PNA because they went through the variance approval process not
long after being granted the permits to construct the marina. Notes from meetings leading up to
this application again show that BBYI was aware of the restrictions that their choice of business
location would have. On October 19, 2009, the consultant for BBYI, Bruce Marek, again
communicated via telephone conversation that his client would like for the DWQ to deny this
permit application so that they may move forward with a variance request from the CRC in
January. The Wilmington Regional office recommends that the Division move to deny this
application.
Bruce ^Marek, P.E.
5489 Eastwind Rd
Wilmington, NC 28403
910-799-9245
October 19, 2009
Mr. Chad Coburn
NC DENR DWQ
127 Cardinal Drive Extension
Wilmington, NC 28405
Re: DWQ Project # 96-1054v2 and CAMA Permit # 90-97 Major Modification Submittal for Marina
Maintenance Dredging, Bennett Brothers Yachts, Inc. 1701 J.E.L. Wade Drive, Wilmington, NC:
Dear Mr. Coburn,
This letter is in regards to our ongoing project seeking maintenance dredging for the Bennett Brothers
Yachts Marina on the North East Cape Fear River at 1701 J.E.L. Wade Drive, Wilmington. Pursuant
to the multi-agency meeting with Jim Gregson, Director of CAMA, on October 7, 2009, we are still
sincere in our efforts in desiring to take our maintenance dredging request to the Coastal Resource
Commission, in order to keep the main floating docks floating at low tide at this state recognized
"Clean Marina".
We understand that your Agency's stance on not being able to grant us a 401 Water Quality
Certification is based predominantly on Marine Fisheries comments regarding dredging in a PNA.
While the New Hanover County CAMA land plan has an exception for allowing maintenance dredging
of marinas within their existing footprint, the State appears to have no such ability to grant such
dredging without the project going for a CRC variance. Rich Carpenter of Marine Fisheries indicated
that he would not have expected the marina, as sited, to experience the siltation/shoaling that has
occurred over the past 10 years because of the location of the marina in regards to fast moving water
and the navigation channel.
A semi-stalemate exists whereas CAMA seeks to put our project "on hold" until we have either a
certification or denial from DWQ. The next CRC Meeting is January 13, 2010. Our hope is for our
maintenance dredging project, which we feel in the big picture is beneficial to the water quality of the
City/ County/Region/State, to be on its agenda.
It is with the facts above that on behalf of Mrs. Patricia Bennett, President of Bennett Brothers Yachts,
Inc. that I respectfully/regretfully request DWQ denial of our CAMA Major Modification Request to
CAMA Permit 490-97. Prompt denial allows for the CAMA process to timely continue for us to meet
the early December deadline of submitting for the Variance Hearing.
Thanks in advance for yol)r kind for your attention to this matter. If you have &-y questions, please
call me at 910-799-9245 or cell 910-228-2484 or email me at [e-mail]
Bruce Marek, P.E. 4Q
es?
Cc: Tricia Bennett, President, Bennett Brothers Yachts, Inc,
Hollev Snider, CAMA, _ioncthor~ Howe!!, CAMA; !an Mctv,illar ? DW'Q 401 WgIft?
EN %x, ?Y.
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State of North Carolina
Department of Environme re? @MEWT
Health and Natural Resou • •
Division of Water Quality 182 0 1997
James B. Hunt, Jr., Governor .®4.oo.... Qa
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
Bennett Brothers Yacht, Inc.
8118 Market St.
Wilmington, NC 28405
Dear Sirs,
i) [-:= H N R
February 7, 1997
Re: Certification Pursuant to Section 401 of the Federal Clean Water Act,
Proposed yacht manufacturing and maintenance facility
WQC Project #961054, COE #199602652
New Hanover County
Attached hereto is a copy of Certification No. 3131 issued to Bennett Brothers Yacht, Inc.
dated February 7, 1997.
If we can be of further assistance, do not hesitate to contact us.
Sincerely,
?f
9.eston ard, Jr.
Attachments
961054.wgc
cc: Wilmington District Corps of Engineers
Corps of Engineers Wilmington Field Office
Wilmington DWQ Regional Office
Mr. John Dorney
Mr. John Parker, Division of Coastal Management
Central Files
Division of Water Quality • Environmental Sciences Branch
Enviro. Sciences Branch. 4401 Reedv Creek Rd.. Raleiah. NC 27607 Telephone [phone] FAX # [phone]

NORTH CAROLINA 401 WATER QUALITY. CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401
Public Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of
Water Quality (DWQ) Regulations in 15 NCAC 2H, Section .0500 to Bennett Brothers Yacht,
Inc. resulting in 0.32 acres of wetland impact in New Hanover County pursuant to an application
filed on the 16th day of January of 1997 to construct a yacht manufacturing and maintenance
facility.
The application provides adequate assurance that the discharge of fill material into the waters
of the Northeast Cape Fear River in conjunction with the proposed development will not result in
a violation of applicable Water Quality Standards and discharge guidelines. Therefore, the State
of North Carolina certifies that this activity will not violate the applicable portions of Sections 301,
302, 303, 306, 307 of PL 92-500 and PL 95-217 if conducted in accordance with the application
and conditions hereinafter set forth.
This approval is only valid for the purpose and design that you submitted in your application,
as described in the Public Notice or as modified below. If you change your project, you must
notify us and you may be required to submit a revised application. If total wetland fills for this
project (now or in the future) exceed one acre, compensatory mitigation may be required as
described in 15A NCAC 2H.0506 (h) (6) and (7). For this approval to be valid, you must follow
the conditions listed below. In addition, you should get any other federal, state or local permits
before you go ahead with your project including (but not limited to) Sediment and Erosion
control, Coastal Stormwater, Non-discharge and Water Supply watershed regulations.
Condition(s) of Certification:
1. That appropriate sediment and erosion control practices which equal or exceed those
outlined in the most recent version of the "North Carolina Sediment and Erosion Control
Planning and Design Manual" or the "North Carolina Surface Mining Manual" (available
from the Division of Land Resources in the DEHNR Regional or Central Offices) are
utilized to prevent exceedances of the appropriate turbidity water quality standard (50
NTUs) in all saltwater classes, and all lakes and reservoirs; and 10 NTUs in trout
waters);
2. All sediment and erosion control measures placed in wetlands or waters shall be removed
and the natural grade restored after the Division of Land Resources has released the
project;
3. If an environmental document is required, this Certification is not valid until a FONSI or
ROD is issued by the State Clearinghouse;
4. Measures shall be taken to prevent live or fresh concrete from coming into contract with
waters of the state until the concrete has hardened;
5. The proposed connection of the oil-water separator to the City of Wilmington's sewer
system shall be coordinated through Ms. Dolores Bradshaw, Wilmington Pretreatment
Coordinator. F
6. Washing of vessels and equipment shall be done in a manner so as not to result in runoff
into surface waters.
7. All solids from washing of boats must be collected and properly disposed of.
8. All maintenance, pressure washing, painting and scraping of boats shall only occur on
high ground with proper runoff and solids disposal.
Violations of any condition herein set forth shall result in revocation of this Certification and
may result in.criminal and/or civil'penalties. This Certification shall, become null and void unless
the above conditions are-made conditions of the Federal 404 and/or coastal Area Management Act
Permit. This Certification shall expire upon expiration of the 404 or CAMA permit.
If this Certification is unacceptable to you have the right to an adjudicatory hearing upon
written request within sixty (60) days following receipt of this Certification. This request must be
in the form of a written petition conforming to Chapter 150B of the North Carolina General
Statutes and filed with the Office of Administrative Hearings, P.O. Box 27447, Raleigh, N.C.
27611-7447. If modifications are made to an original Certification, you have the right to an
adjudicatory hearing on the modifications upon written request within sixty (60) days following
receipt of the Certification. Unless such demands are made, this Certification shall be final and
binding.
This the 7th day of February, 1997
DIVISION OF WATER QUALITY
ston oward, Jr.
WQC #3131 ?,
State of North Carolina
Department of Environment,
Health and Natural Reso-=`?
Division of Water Quality pp6L 2
Ems: ?f?'s. Rq A 7 f?"e ti?b
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary _ ?Aa ?® F H N
A. Preston Howard, Jr., P.E„ Director
January 6, 1997
New Hanover County
DWQ Project # 961054
APPROVAL of 401 Water Quality Certification and ADDITIONAL CONDITIONS
Bennett Brothers Yacht, Inc.
8118 Market Street
Wilmington, NC 28405
Dear Sirs:
You have our approval to place fill material in 0.35 acres of wetlands or waters for the purpose of
constructing a yacht manufacturing and maintenance facility with associated marina at N.E. Cape Fear River
at 3rd Street Bridge, as you described in your application dated 15 November 1996. After reviewing your
application, we have decided that this fill is covered by General Water Quality Certification Number 3025.
This approval is only valid for the purpose and design that you described in your application except as
modified below. If you change your project, you must notify us and you may be required to send us a new
application. If total wetland fills for this project (now or in the future) exceed one acre, compensatory
mitigation may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be
valid, you must follow the conditions listed in the attached certification and any additional conditions listed
below. The proposed connection of the oil-water separator to the City of Wilmington's sewer system shall be
coordinated through Ms. Dolores Bradshaw, Wilmington Pretreatment Coordinator. Washing of vessels and
equipment shall be done in a manner so as not to result in runoff into surface waters. All solids from the
washing of boats must be collected and properly disposed of. All maintenance, pressure washing, painting
and scraping of boats shall only occur on high ground with proper runoff and solids disposal. In addition, you
should get any other federal, state or local permits before you go ahead with your project including (but not
limited to) Sediment and Erosion Control, Coastal Stormwater, Non-Discharge and Water Supply Watershed
regulations. This approval will expire when the accompanying 404 or CAMA permit expires unless
otherwise specified in the General Certification.
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory hearing.
You must act within 60 days of the date that you receive this letter. To ask for a hearing, send a written
petition which conforms to Chapter 150B of the North Carolina General Statutes to the Office of
Administrative Hearings, P.O. Box 27447, Raleigh, N.C. 27611-7447. This certification and its conditions
are final and binding unless you ask for a hearing.
This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water
Act. If you have any questions, please telephone John Domey at 919-733-1786.
'
pe
n How , Jr. P.E.
Attachment
cc: Wilmington District Corps of Engineers
Corps of Engineers Wilmington Field Office
Wilmington DWQ Regional Office
Mr. John Dorney
Central Files
John Parker; DCM
Dolores Bradshaw; City of Wilmington
Steve Morrison; Land Management Group 961054.1tr
Division of Water Quality ® Environmental Sciences Branch
Environmental Sciences Branch, 4401 Reedy Creek Rd., Raleigh, NC 27607 Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer • 50% recycled/10% post consumer paper
Permit Class Permit Number
NEW 90-97
STATE OF NORTH CAROLINA
Department of Environment; Health & Natural Resources
and
Coastal Resources Commission
r 11
for
Major Development in an Area of Environmental Concein
r ,? s a r?
pursuant to NCGS 113A-118
Excavation and/or filling pursuant to NCGS 113-229
Issued to Bennett Brothers Yachts, Inc., 8118 Market Street, Wilmington, NC 28405
authorizing development in
New Hanover
County at Northeast Cape Fear River, immed. N. of 3rd.
St. Bridge, in Wilmingtonas requested in the pennittee's application dated revised 6/17/97, letter revisions dated
5/5/ and 6/18/97 and attached work plan drawings described in Condition #1.
This permit, issued on )2 - Z3' -- qr1 , 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
be subject to a fine, imprisonment or civil action; or may cause the permit to be null and void.
1) The project authorized herein must be carried out in strict compliance with work plan for upland
development dated 5/2/97, with dock alignment deleted by DCM, and work plan for modified dock
layout, "Revised Slip Layout" dated 6/17/97.
2) This permit does not authorize excavation at the boat lift or any other excavation or filling in the
Northeast Cape Fear River and adjacent coastal wetlands.
Docking Facility Construction
3) Prior to any construction of the docking facility, an Easement must be obtained from the State
Property Office, Department of Administration, telephone: [phone].
Attached sheet for Additional Conditions
This permit action may be appealed by the permittee or
other qualified persons within twenty (20) days of the
issuing date. An appeal requires resolution prior to work
initiation or continuance, as the case may be.
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 Departmental approval.
All work must cease when the permit expires on
December 31, 2000
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 of the Secretary of DEHNR and the
Chairman of the Coastal Resources Commission.
Roger . checter, Director
Division of Coastal Management
This permit and its conditions are hereby accepted.
Signature of Permittee
Bennett Brothers Yachts, Inc. Permit #90-97
Page 2 of 4
ADDITIONAL CONDITIONS
4) No dockage, including pilings, may be placed closer than 112 feet to the near edge of the
Federally-maintained channel.
Archaeological Investigation
Relic Warf and Crib Structures
5) If these archaeological remains cannot be avoided during construction and thus, destruction or
disturbance is imminent, then the following requirements apply:
a) Wharf and crib structure. An archaeologist shall record the details of this
structure. Portions of the original backfill should be screened to determine
the date of construction. Archival research should be conducted to comple-
ment the archaeological findings.
b) Piling removal. Prior to the removal of any pilings, each shall be surveyed
and plotted on the project map.
C) If the permittee discovers any previously unknown historic or archaeological
remains while accomplishing the authorized work, he will immediately notify
DCM and the Wilmington District Engineer who will initiate the required State/
Federal coordination. Contact the Division of Archives and History at 919/
733-4763 for further consultation.
Upland Development
6) The Division of Water Quality approved the project proposal on June 23, 1997 under
Stormwater Management Permit No. SW8976403. Any violation of this SWMP will be
considered a violation of this CAMA permit.
NOTE: An Erosion and Sedimentation Control Plan will be required for this
project. This plan must be filed at least thirty (30) days prior to the
beginning of any land-disturbing activity. Submit this plan to the Dept.
of Environment, Health, and Natural Resources, Land Quality Section,
127 Cardinal Drive Extension, Wilmington, NC 28405-3845.
Bennett Brothers Yachts, Inc. Permit #90-97
Page 3 of 4
ADDITIONAL CONDITIONS
NO'T'E: The project may be subject to a state NPDES Permit for industrial
activities pursuant to 40 CFR 122.26 (DWQ General Permit NCGS-
190000). Contact the Division of Water Quality at 919/395-3900.
NOTE: The Division of Water Quality approved the wetland fill aspect of this
project on February 7, 1997 under Water Quality Certification #3131.
NOTE: The permittee is advised to contact the New Hanover Mosquito Control
Office for consultation on the prevention of mosquito breeding on the
project property.
7) No wetlands will be filled on the permittee's tract, except that delineated in the planview dated
5/2/97.
Marina and Facility Operation
8) A Pre-Treatment Permit must be obtained from the City of Wilmington prior to initiating
construction. Contact the Wilmington Pre-Treatment Coordinator.
9) The washing of vessels, equipment, etc., shall be done in such a manner which will not result
in runoff of wash water into surface waters. All accumulated solids from the washing of boats
must be collected and properly disposed of in keeping with local and/or state rules.
10) Prior to the occupancy of any slips authorized under this permit, the marina will install and
maintain for the life of the project a sewage pumpout facility to service boats with holding
tanks.
11) The marina will display a sign showing the location of the onsite pumpout facility, and other
appropriate waste disposal information, at the entrance and exit from the main piers.
12) No sewage, whether treated or untreated, shall be discharged at any time from boats using the
marina. Any sewage discharge at the marina shall be considered a violation of this permit for
which the permittee is responsible. This prohibition shall be applied and enforced throughout
the entire existence of the permitted structure.
Bennett Brothers Yachts, Inc. Permit #t90-97
Page 4 of 4
ADDITIONAL CONDITIONS
NOTE: It is strongly recommended that the permittee exercise all available pre-
cautions in the day-to-day operation of the facility to prevent sand blasting
residue and/or other facility waste from entering the adjacent waters. Such
discharge, either directly or indirectly, to adjacent waters could contravene
state water quality standards, thereby violating state laVv.
13) This permit does not authorize the interference with any existing or proposed Federal project.
The permittee will not be entitled to compensation from existing or future operations
undertaken by the United States in the public interest.
14) No attempt will be made by the permittee to prevent the full and free use by the public of all
navigable waters at or next to the authorized work. Use of the permitted activity must not
interfere with the public's right to free navigation on all navigable waters of the United States.
15) The permittee must install and maintain, at his expense, any signal lights and signals
prescribed by the U. S. Coast Guard, through regulations or otherwise, on authorized
facilities. At a minimum, permanent reflectors or reflective material will be affixed to the ends
of all piers and maintained for the life of the project.
16) It is possible that the authorized structure may be damaged by wavewash from passing vessels.
The issuance of this permit does not relieve the permittee from taking all proper steps to ensure
the integrity of the permitted structure and the safety of moored boats. The permittee will not
hold the United States liable for any such damage.
17) The permittee will maintain the authorized work in good condition and in concordance with the
terms and conditions of this permit. The permittee is not relieved of this requirement if he
abandons the permitted activity without having the permit transferred to a third party.

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PO. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
IN REPLY REFER TO
Regulatory Branch
Action ID No. 199602652
June 19, 1997
Mr. John Parker
Division of Coastal Management
North Carolina Department of Environment,
Health, and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Dear Mr. Parker:

Reference the application of Bennett Brothers Yachts for a Department of
the Army permit to construct a yacht manufacturing and maintenance facility on
the Northeast Cape Fear River, on property adjacent to J.E.L. Wade Drive,
Wilmington, New Hanover County, North Carolina.
The Federal agencies have completed review of the proposal as presented
by the application, your field investigation report, our public notice of
January 16, 1997, and plans revised June 17, 1997.
We recommend that the following conditions be included in the State
authorization:
a. All work authorized by this permit must be done in strict compliance
with the permit plans dated March 26, 1997, and revised June 17, 1997.
b. No dockage, including pilings, may be placed closer than 112 feet to
the near edge of the Federally maintained channel.
C. To protect juvenile fisheries, no excavation will be allowed between
the dates of April 1 and September 30 of any year without the prior approval
of the North Carolina Division of Coastal Management.
d. Excavation will be limited to establishment of the thirty-six (36)
foot wide, twelve (12) foot deep travel lift basin area. Excavation will not
exceed twelve (12) feet below the elevation of mean low water (MLW),
e. All excavated materials will be confined landward of the mean high
water (MHW) elevation contour and any regularly or irregularly flooded
vegetated wetlands.
f. No excavated or fill materials will be placed any time in any
vegetated wetlands or waters.
1
-2-
g. This permit does not authorize the interference with any existing or
proposed Federal project. The permittee will not be entitled to compensation
for damage or injury to the authorized structure or work that may be caused
from existing or future operations undertaken by the United States in the
public interest.
h. No attempt will be made by the permittee to prevent the full and free
use by the public of all navigable waters at or next to the authorized work.
Use of the permitted activity must not interfere with the public's right to
free navigation on all navigable waters of the United States.
i. The permittee must install and maintain, at his expense, any signal
lights and signals prescribed by the U.S. Coast Guard, through regulations or
otherwise, on authorized facilities.
j. The permittee, upon receipt of a notice of revocation of this permit
or upon its expiration before completion of the work, will, without expense to
the United States and in such time and manner as the Secretary of the Army or
his authorized representative may direct, restore the waterway to its former
conditions. If the permittee fails to comply with this direction, the
Secretary or his representative may restore the waterway, by contract or
otherwise, and recover the cost from the permittee.
k. It is possible that the authorized structure may be damaged by
wavewash from passing vessels. The issuance of this permit does not relieve
the permittee from taking all proper steps to ensure the integrity of the
permitted structure and the safety of moored boats. The permittee will not
hold the United States liable for any such damage.
1. The permittee will maintain the authorized work in good condition and
in concordance with the terms and conditions of this permit. The permittee is
not relieved of this requirement if he abandons the permitted activity without
having it transferred to a third party.
M. If the permittee discovers any previously unknown historic or
archeological remains while accomplishing the authorized work, he will
immediately notify the Wilmington District Engineer who will initiate the
required State/Federal coordination.
n. This permit does not grant any property rights or exclusive
privileges.
o. In issuing this permit, the Federal Government does not assume any
liability for:
(1) Damages to the permitted project or uses of it because of other
permitted or unpermitted activities or from natural causes.
(2) Damages to the permitted project or uses of it because of current
or future Federal activities initiated for the public.
-3-
(3) Damages to other permitted or unpermitted activities or
structures caused by the authorized activity.
(4) Design and construction deficiencies associated with the
permitted work.
(5) Damage claims associated with any future modification,
suspension, or revocation of this permit.
Questions or comments may be addressed to Mr. Jeffery Richter, Wilmington
Field Office, Regulatory Branch, telephone [phone].
Sincerely,
Clifford Winefordner
Chief, South Section
Regulatory Branch
Copies Furnished:
Mr. John Dorney
Division of Environmental Management
North Carolina Department of
Environment, Health and
Natural Resources
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Mr.. C. Robert Stroud, Jr.
Wilmington Regional Office
North Carolina Division of
_f Coastal Management
127 Cardinal Drive Extension
Wilmington, North Carolina 28405-3845
Mr. John Hefner
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Larry Hardy
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
Mr. Thomas Welborn, Chief
wetlands Protection Section - Region IV
Water Management Division
U.S. Environmental Protection Agency
Atlanta Federal Center
61 Forsyth Street
Atlanta, Georgia 30303
x)1-125- 101 15:y1 1 htJt'J-1VL L)trq i LoaSTal mgmT yly-l?5-14y5 1 -S1I t 0101/bbl t -2SL5
Bennett Brother U':wchts. Inc.. Variance Request fCRC-749
Marypee Carr'away advised she was with the North Carolina Attorney General's Office and would be representing the Division of Coastal Management in this matter. Ms. Carraway stated that
Paul Bennett, tnwwrof Bennett Brothers Ykhtr, would be npresentiog himself in this matter, Ms. Carraway then reviewed the Stipulated facts in this case contained in CRC-749. Ms. Conaway
showed The Commission slides of the property involved in this variance request.
Paul Bennett advised he was President of Bennett Brother Yachts. Mr, Bennett stated that what they were proposing to do was dredge an area approximately the size of area inside the
Commission's table. He said this would give the Commission a sense of how small an area that was.
Mr. Bennett then reviewed the petitioner's response to the four variance criteria contained in CRC-749. Mr. Bennett stated they were taking every effort to make their marina and boat yard
as onsittlntwith State and federal programs as possible bat the dredging matter was one area where they stuck and there really were no alternatives. Mr. Bennett advised that other options
that might be there would create greater disturbances. He said this option was the course of least resistance in terms of disturbing the bottom of the river and was a very small amount of
land. Mr. Bennett urged the Commission to consider their situation and grant them a variance.
Ms. Carrawayrevitwed staffs response to Ik four variance criteria contained in CRC-749. Ms. Carr away said that since staff felt the petitioner met all four of the variance criteria, staff was
in support of the petitioner's variance request.
Reggie Carona eked fordarification on where the proposed bulkhead would be located and Ms. Curaway and Mr. Bennett responded to Mr. Caroon's request for clarification. Mr. Caroon moved
that the Commission grant this variance request and his motion was seconded.
Courtney Hacknry asked exactly where this site was boated on the Northeast Cape fear River. Ms. Carraway, advised it was north of the Third Street bridge. Mr. bi rsnett said the area they
wanted to dredge was about 1100 feet north of the bridge on the northeastern side of the river. Dr. Hackney asked if staff agreed that remoral of the rock fill along the shoreline by the
petitioner was a positive thing. Ms. Caraway, responded staff was in favor of the removal of the rock fill.
Pricey Taylor asked for clarification of Mariner fist des position on this project and Ms. Conaway, explained that Marine fisheries had originally objected to the plahned dredging activities
in the PNA. She said sublequept to the redudion of the area of PHA to be dredged and an on-site visit, Marine Fisheries withdrew its objections to the project.
CourtneyHaduseymoved to call The question and his nation to call the question was unanimously approved. The Commission voted unanimously to approve Mr. Caroon's motion to grant Bennett
Brothers Yachts variance request.
Melvin Shepard stated he had voted for this variance request. He said that it seemed to him that one of the arguments for granting this variance request was that the CRCwas bound to grant
it due to xvtral actions by the Crops of Engineers. Mr. Simpard advised he found that not to lit a driving force for CAC action. Mr. Shepard said because some other permit did not work exactly
the way the petitioner requested he did not think that should necessitate anion by the CRC Mr. Shepard stated he questioned whether or not that should be part of the argument for the
Commission's approval.
Mr.Shepard said another thing he would like topoint out was that maybe on the rubble removal there should have some consultation with the Division of Marine fisheries, Mr. Shepard stated
that the CACwas talking stabilizing shorelines with rubble and, from everydsing he had learned over the last few years, this rubble, once it was in place for a while, became a primary nursery
area.
4)
6eachwaslMailer Inn Variance equest: {CRC-151)
Post-W Fax Note 7671 Dam i s 0 7 Pa9 s® cis variance request due to his relationship with one of the partseri.
To D t?- From o 9 P c-P :hwalk Condominium Owners Association avid Whalers Inns Homeowners Association: He
CoJDes>t Co. king was a variance to cap to a pre-,exisling concrete bulkhead that they had previously
Phone a Phone 4 passed around a survey which he felt would help the Commission better understand the
Coxtl previously sustained to the bulkhead at these properties.
+walk Owners Association. Mr. Dunn said Dave Heater had accurattly summarited the
?w,., ?.?..<« vise wannna9o psnures or snese properties to order to give them a better idea of exactly what was at stake in this case. Mr. Dunn said the
bulkhead in front of these properties currently had about a 42 inch dip in it. Mr. Dunn advised when repairs had been made to this bulkhead the contractor with knowledge of the property
managers had determined that the panels needed to. be buried deeper in the sand for stability than they previously had been. Mr. Dunn said the property owners had not understood at the
time the consequences of the contractor doing flit, Mr. Dunn said all the petitioners were asking to do was to level off the top of this bulkhead. Mr. Dunn stated that what struck him more
about this than anythingelse was that sometimes you could actually obscure simple points when you went into analysis under legal criteria such as the variance criteria. Mr. Dunn reiterated
that all the petitioners were asking was to level an existing bulkhead that they had the right to repair over and over again as necessary it it was damaged. Mr. Dunn said a portion of the
bulkhead had been driven deeper so the increased dimension war under the sand essd now all that was being asked was that they be allowed to level it off so that the damaged portion of the
-11-
A
HECEIVEL)
JUL 2 5 107
DCM FORM I1
PE'TMONER'S NAME
COUNT'
FILE NUNMER
Z
vdPr,
I. V -7l jr)
V
(Petitioner leaye bland)
PuTsuant to North Carolina Cenral Statute 113A-120.1 and
Code W Section.0700, the petitioner in this matter applies to
for a variance.
For this application to be WMp]ete, the petitioner must
Statement below;
ti,C. ATTORNEY GENMAL
ERVff " P"tal Divisio7
C
VA,RYANCE
REQUEST
k Nerth Carolina AdmWstrat5ve
CoasW Resources Cvnjrrission
C C responses to each
(a) WW en.f'orceanent of the applicable developmcnT guidelines or standards cause the
Petitioner paactic,4 d?cu]ties or unnecessary h dsh W If so, thepetitioner must
identify the difficulties or hardships.
N
(c)
(d)
NOM
Do such difficulties or hardships result from conditions peculiar to u1c Petitioncr°s
pxoperty? Explain.
Could The CoasW Resources Commission ha e reasonably anticipated these
conditions when the applicable guidclines ors lards were adopted? Explain.
i
IS the PrOpased dcyelopmmt oonsiSWnt with the
COrmlissian's regulations? Expla n.
p®r this request to br considered, the Petitioner
and (d) in the afflTmative and (c) in the oegaTgve
Due to the above informapon and pursuant to statute, the undersi
spit, purpose and intent of the
b-- able to answer (a), (b)
hereby Y'egne-qes a vgfiance.

V1SET7 Fcbrlaaxy 4, 1994
YES. Bennett Brothers Yachts, a small boat building and repair faci ity, has diligently searched for an
appropriate deepwater commercial site on the Cape Fear River for over Leven (7) years. For environmental
and permitting reasons only, it was forced to reject several prior sites, ??te current site offers the Petitioner
the first, and to the Petitioner's knowledge, the only site suitable for wat r storage and haul-out of deep draft
sailing vessels - the majority component of the Petitioners service an building efforts. The inability to
service deep draft craft will severely restrict the Petitioner's market. Th Petitioner estimates that he would
loose up to 50% of his anticipated boat repair business.
Sennett Qrothers is investing in an eighty five (85) ton travel lift, capabl of lifting yachts up to one hundred
(100) feet in length. With the loss of travel lift pier length due to th unanticipated Corps of Engineers
channel line being further inshore, the Petitioner would effectively be Ii ited to only liming a sixty (60) foot
sailing yacht at low tied and about a seventy five (75) foot yacht at igh tide. A repair yard's growth is
limited by the size of the yacht they can repair, The present restrictions effectively cut the Petitioner out of
the repair of sailing yachts between seventy-five (75) and one hundred (100) feet- Nearly fifty percent of
the business opportunity in the Practitioner's new yard is wssociated ith these larger yachts.,
There are no yards in North Carolina presently serving this market. Mos locations along our coastline are in
areas where the larger yachts don't have access because of draft limitati ns along the adjoining waterways,
The Cape Fear River is one of the few deep-water ports providing access for larger sailing yachts. The
business and associated high paying jobs servicing large sailing yachtsi is going to Savannah. GA in this
region as well as to Florida and New England. Bennett Brothers Yacs has been turning away work on
larger yachts because of tits current location, being forced to turn a?Jjay work in it new location would
constitute a hardship for the company and a loss for the community.
YES. A set of unanticipated circumstances is active in this variance r que
st. All original permit requests
associated with this site allowed for all craft service operations to take pl ce withola any dredging within the
entire project. Due to administration communication problems within th Corp of Engineers, the Petitioner
and the Petitioner's consultants were unaware that the Cape Fear River channel width requirements at this
point in the river required reduction in the pier-head line available to a Petitioner. This had the effect of
reducing the available haul-out-length-to-depth requirements at the oat haul-out point This in turn
eliminated the typical deep draft sailboats common to the Petitioner's 4siness and the core. reason for the
selection of this facility site. These requirements were brought to the Petitioner's attention approximate) 6
to 7 months after filing the CAMA / COE permit documentation, Thi timing pressured the Petitioner to
bring all revision changes into a two-week time frame in-order to satisfy Oroperty purchase contracts
In-order to allow full-scale haul-out operations intended by the Petitions
advised Petitioner that a small dredged area would satisfy the water
necessary for commercial haul-out and still allow for the water corridor
channel width requirements. An excavation approximately 30, by 30, u
accommodate full service facility operations. This dredging represents f
disturbance.
The specific 0.02 acres of surface to be excavated is unique on its own m
60-foot length to be dredged is out of the water. In addition, the make-,
acres is man-made. consisting of old wharf material, dead-men hardwar
construction material. Although possible, this surface area is an unlikely
surfaces falling under PNA guidelines.
Corps of Engineer administrators
lepth to boat-length requirements
cstrictions permitted by the Corps
der PNA coverage is necessary to
proximately 0.02 acres of surface
its. At low tide, a good part of the
of the actual surface of this 0,02
and rubble from past seawall and
roductive site for primary nursery
Corps of Engineer's Environmental Impact Statement for River Deepeni;
Location
This entire permit site falls within the area already CAMA approved C
deepening and widening project. It may be informative to outline comp;
project and this variance request. According to the approved Environme
project, "Construction of the project plan will result in the loss of 13.2
primary nursery areas by the State of North Carolina." To accommod
acres of PNA surface areas will be disturbed in this same area water basi
surface disturbance. The Petitioner's request represents only 0. 15% of th
the purpose of the Corp's project is to deepen the river to allow deep dra
commercial purposes, the Petitioner's project and the Coup's project have
Approved Chlorinated Discharge Water from Adjacent PropeM Covers Propo
The City of Wilmington's water treatment plant has a permitted 16-inch
end of the Petitioner's property line, This conduit produces a 500,000-
stream of treated city water from sludge removal process that passes ove
flow. The effects of this treated water on the proposed dredge site's subs
Primary Nursery Area effectiveness.
G.
Entire Project Site Is Sandwiched Between Industrial Neighbors
immediately north of the Petitioner's site is the City of Wilmington's w;
plant is the Seaboard System Railroad Bridge connecting east and west
that is an oil and chemical storage and shipping facility. Immediate]
property is the Holmes highway bridge managed by the NC DOT. Belc
of the river, is Almont Shipping, a major bulk storage and shipping facil
NO. There would have been no way to anticipate the set of issues and
and subsequent pier and haul-out zone length shortening associate
information from the Corps could never have been anticipated. The fact
preclude desired deep keel vessels access to the Petitioner's services as
could never have been anticipated. Finally, the actual existing surfac
zone surface of the haul-out zone are atypical and characteristically
traditional primary nursery area surfaces.
YES, This project is consistent with the water use objectives of the
Wilmington Land Use Plans. The operation of this facility well be congas
out in the wide to Protecting Coastal Resources Arough Vie CAMA
program document entitled North Carolina's Basinwide Approach tc
project is consistent with the Corps of Engineers Section 10 of the R
US C 403) and with Section 404 of the Clean Water Act (33 US: C. 134
In addition, the marina component of this facility falls into a classifics
been seen by 1)E14IVR to be, for the most part, non-threatening to st
conducted by DEHNR, (Naeth Carolina Coastal Marina$., Water Asse:
marinas examined had very few water quality problems. In additio
Marinas: Field Survey of Contaminants and Literature Review concIud
on estuarine environment outside marina basins appeared to be minima].
A Widening Project Includes this
rps of Engineer's Cape Fear River
isons between the Corp's permitted
tal Impact Statement for the Corp's
,res of estuarine bottom designated
.e this variances request, only 0.02
already permitted for dredging and
acreage permitted to the Corp. As
vessels into commercial zones for
tuah in common,
rd Dredge Site Daily
ater discharge conduit on the north
allon to 1,000,000-gallon constant
the proposed dredge with the river
atc are unknown with regard to its
r treatment plant. Just north of this
nks of the Cape Fear River- Above
below or south of the Petitioner's
the bridge, on the Petitioner's side
1conditions raised above. The delays
with mi.sploccd permit response
hat the reduced haul-out zone would
result of the revised pier-head line
attributes of the required dredging
not consistent or conforming with
New lianovcr County and City of
tent with DEWNR objectives spelled
Permit Program anti the basinwide
Grater Qualit'v Management. The
vers and Harbors Act of 1899 (33
n of permitted facilities that have
)unding waters- in marina studies
rent [1990], it was shown that the
the 1991 DEHNR study Coastal
that marina water quality impacts
TOTAL P.1?
I'tVU-10-1771 IJf °'i.i rlCIJII IY. L.1-YI IUICIVCI UCIVCR. YiL IU CI-11 "if ", f'P_7 !'J1LI 1. ?-. J7

The undersigned stags that (check one):
He or shy has received a final decision ai an Application for a CAM-,
Major Development IPe;Tnlit; or
He or she has received a final decision bar an Application for a CAI MA
Minor Development Permit, The undersigned has attached:
(a) A copy of the Permit A,pplicationj and the derision; and
(b) A cvrnplete description of the p posed development, including a
site drawing with adequate topo aphical and survey inforrnaticn-
-
Dam nature
CL VoeL471 z C
At- - -t ri
6afL01- V4 d Y ?-d 46Y614d Y? V ?KVd06 ?.
Addr s
l-?+ -
city I °,-? 8tarc Zip
Telephone
Except as provided below, this Vance Retjuest m6st be filed with the Office of
Administradve Heuings, P.Q. Drawer 27447, Raleigh, NC 276] 1-7447. A Cerdfi`atz of Serviea
should be attached showing that copies have bra served on tie Director, Division of Coastal.
Managcrnent, and the Attemey General's ®fficc, hnvironrr =mi Section, at the addrems shown
an the attached Co-dficaro of Sc>yice Perm. If a contesmd ?ase hearing will be t quuired to
resolve disputed facts or you vans to appcal the 'pc rn- .x dcci?iou upon w}r??h ),om Yaria.=;
Request is preheated, a ,MA Permit Appc?sl and kieazdnd Pee Lion s$>, uld also be f11cci with the
Office of Administrative Hearings at the above address. If the facts Are unlikely to be disputed,
this Request may be filed with the Director, Division of Coastal Management for presentation
to the Coastal Resources Conupission without a connestzd ctalsc hca:6ng a.q provided in l.sA
NCAC U Sec4on .0700.

REVISED; Eebruaay 4, 1994

CERTIFICATE OF SERVICEI
(This Certificate of Service should be attached to any l ariance Request which is filed
with the Office of Administrative Hearings, You don't have u=h a Certificate of Service
to any Variance Request you file with the Director or any District Manager of the Division of
Coastal Management under the Coastal ResoUrces Commission i expedited variance procedures,)
I hereby certify that this Variance Request has been served on ?thc State agencies named below
by depositing copies of it with the Untied States Postal Scrl,ice with sufficicnt postage for
delivery by firxt class mail or by personally delivering copies 9 the narned agoncics;
Served on: Director
Division of Coastal Management
P.O. Box 27687
Raleigh NC 27511; and
Attt) ey General's Office
Environmental Section
P-0, Box 629
Raleigh NC 27502-0529 `
T his the day of L-
Signatatre
99`
pEtiddOner or Attorney
REVISED: February 4, 3994
STATE OF NORTH CAROLINA BEFORE THE NORTH CAROLINA
COASTAL RESOURCES COMMISSION
COUNTY OF NEW HANOVER
`N THE MATTER OF:
)
PETITION FOR VARIANCE BY ) FINAL ORDER
BENNETT BROTHERS YACHTS )
INC. )
This matter was heard on oral arguments and stipulated facts at the regularly scheduled
meeting of the North Carolina Coastal Resources Commission (hereinafter CRC) on November
21, 1997, in Wilmington, North Carolina pursuant to N.C.G.S. § 113A-120.1 and T15A NCAC
7J.0700, et se4. Associate Attorney General Mary Dee Carraway appeared for the Department of
Environment and Natural Resources, Division of Coastal Management; Paul W. Bennett
represented the Petitioner Bennett Brothers Yachts, Inc.
Upon consideration of the stipulated facts and the arguments of the parties, the CRC
adopts the following:
FINDINGS OF FACT
1. Bennett Brothers Yachts (hereinafter Petitioner) owns property located adjacent to the
Northeast Cape Fear River, on J.E.L. Wade Drive, on the north side of the 3rd Street Bridge, in
Wilmington, New Hanover County, North Carolina. The property is located in the Estuarine
Shoreline AEC.
2. In October of 1996, Petitioner applied to DCM for a CAMA Major Development
permit to construct a yacht manufacturing and repair facility, including a 52 slip marina. The
upland portion of the proposed project includes a building for offices, public toilets, a shop for
the sale of marine supplies, and a building for the manufacture and repair of large sail and motor
yachts. Proposed development in the Northeast Cape Fear River includes three piers elevated
2
over and extending across wetlands connecting to two main floating docks, with 54 finger slips,
including a lift slip to be used for lifthng yachts in and out of the Northeast Cape Fear River for
maintenance and repair work. The project as originally proposed required no dredging activity.
3. The proposed development in the Northeast Cape Fear River is in the Estuarine
Waters and Public Trust AEC's.
4. The area of the Northeast Cape Fear River in which the development is proposed has
been designated as a primary nursery area ("PNA") by the Marine Fisheries Commission
("MFC")
5. The proposed project abuts a channel within the Northeast Cape Fear River which has
been designated by Congress as a federal waterway to be maintained by the Corps of Engineers
(Corps). This federally maintained channel is subject to periodic dredging by the Corp. The
channel is authorized to be maintained at a depth of 32 feet.
6. The project includes a lift slip equipped with a travel lift designed for raising yachts
from the water and moving them landward for maintenance and repair. The lift slip, as drawn on
the original permit diagram was 132 feet long and 30 feet wide. At its watermost point, the lift
slip was set back 80 feet from the near edge of the federally maintained channel
7. Petitioner applied to the Corps for a Section 10 permit in order to construct the piers,
docks and travel lift in the Northeast Cape Fear River. In June of 1997, the Corps informed
Petitioner that in order to receive a Section 10 permit for the project, the development had to be
set back 112 feet from the near edge of the channel, rather than the 80 feet that Petitioner had
originally used in designing the marina. Thus, in order to comply with the Corps's regulations,
3
Petitioner's development in the Northeast Cape Fear River, which included the piers, docks, and
travel slip, had to be moved shoreward a distance of 32 feet.
8. On June 17, 1997, Petitioner submitted a revised permit drawing in which the piers,
docks, and lift slip were moved shoreward a distance of 32 feet. This was accomplished by both
shortening boat slips and moving the entire project shoreward. Because of the shallowness of the
water at the new location, Petitioner submitted a revised drawing to DCM which indicated an
intent to dredge an area approximately 30 feet wide and 30 feet long (900 square feet) in the lift
slip. The dredging operations would allow large sail and motor yachts (boats over 50 feet in
length) to gain access to the lift slip. The entire area to be dredged in the Northeast Cape Fear
River is in an area classified as PNA. The plan required excavation of approximately 480 cubic
yards of material from above and below mean high water.
9. On July 2, 1997, DCM issued CAMA Major Development Permit No. 90-97 to
Bennett Brother's Yachts, Inc. for development of the proposed marina and yacht repair facility.
The permit is based on the revised plans; however, condition No. 2 of the permit states.. "This
permit does not authorize excavation at the boat lift or any other excavation or filling in the
Northeast Cape Fear River and adjacent coastal wetlands."
10. On September 3, 1997, Petitioner and representatives from DCM met at the site of
the proposed project. As a result of this meeting, Petitioner reduced the total area of PNA to be
dredged from 900 square feet to 732 square feet by changing the shape of the travel lift from
rectangular to oval. The total area of PNA to be dredged in waters shallower than four feet is
410 square feet. The proposal would require excavation of approximately 150 cubic yards of
material from PNA. The maximum depth of the travel lift area after dredging is 15 feet.
4
Petitioner has agreed to bulkhead the perimeter of the. excavated area in order to stabilize the
edge and reduce the possibility of further disturbance of the PNA.
11. Petitioner voluntarily removed 1,728 square feet of rock fill in the PNA as well as in
an area of coastal wetlands located along the shoreline, approximately 200 feet upstream from
the proposed dredge area.
12. Dredging is prohibited in PNA's by 15A NCAC 7H.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."
13. Petitioner seeks a variance from 15A NCAC 7H.0208(b)(1) in order to conduct
dredging activities in a PNA in the Northeast Cape Fear River to facilitate adequate depth for a
travel lift capable of accommodating large sail and motor yachts-
14. The Division of Marine Fisheries ("DMF") originally objected to the planned
dredging activities in the PNA. However, subsequent to the site meeting on September 3, 1997,
and the reduction of the area of PNA to be dredged, DMF withdrew its objections to the project.
Based on the foregoing Findings of Fact the Coastal Resources Commission makes the
following:
CONCLUSIONS OF LAW
1. The CRC has jurisdiction over the parties and the subject matter.
2. The parties have been correctly designated and there is no question of misjoinder
or nonjoinder of parties. -
5
3. All notices for the proceeding were adequate and proper.
4. Application of l_A NCAC 7H.0208(b)(i) will result in practical difficulties or
unnecessary hardship to Petitioner in that compliance with the rule would cause Petitioner to
lose approximately 50% of its anticipated boat repair business although the site is otherwise
highly suitable for the storage, maintenance and haul-out of deep draft vessels.
5. This hardship results from conditions peculiar to the subject property in that
Petitioner planned the project to avoid any primary nursery area, but was forced to pull the
proposed project closer to shore and into shallower water in order to comply with the Corps of
Engineers' channel line, causing part of the project to be relocated into an area that is designated
as a PNA, but does not have high functional values. The redesigned project would require
dredging of only .02 acres of PNA
6. The Coastal Resources Commission could not reasonable have anticipated the
application of the rule in conditions where a direct conflict between Corps of Engineers rules
and those of the CRC would foreclose construction of a boat maintenance facility in an area
otherwise highly suited to such a facility based on a very small impact to a PNA that does not
have a high resource value.
7. The project is consistent with the spirit, purpose and intent of coastal
management statutes and rules in that the applicant has minimized the impact to PNA to the
extent possible and the Division of Marine Fisheries has determined that the minor amount of
dredging proposed by Petitioner would have only an insignificant impact on functioning PNA.
Based on the foregoing Findings of Fact and Conclusions of Law, the Coastal Resources
Commission hereby GRANTS Petitioner's request for a variance from 7H.0208(b)(1).
This the „-day of December, 1997.
i• f i i I
Eugene B. Tomlinson, Jr., Chairman
Coastal Resources Commission
1 =tee
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