19961054 Ver 2_Other Agency Comments_20091228

NCDENR
North Carolina Department of Environment and Natural
Division of Coastal Management
Beverly Eaves Perdue, Governor James H. Gregson, Director
December 23, 2009
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Bennett Brothers Yachts, Inc.
c/o Trisha Bennett
1701 J.E.L. Wade Drive
Wilmington, NC 28401
Dear Ms. Bennett:
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Dee Freeman, Secretary
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DEC `6 8 2009
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WETLANDS AND STORMATER BRANCH
This letter is in response to your application for a Major Modification to Coastal Area
Management Act (LAMA) Permit No. 90-97, in which authorization was requested to excavate
an area 1,854' X 47' to a depth of -12' below the normal low water level in the Northeast Cape
Fear River, in New Hanover County. Processing of the application, which was received as
complete by the Division of Coastal Management's Wilmington Regional Office on June 10,
2009, is now finalized. Based on the state's review, the North Carolina Division of Coastal
Management has made the following findings:
1) The subject property is located adjacent to the Northeast Cape Fear River.
2) The proposed project is located within a Primary Nursery Area (PNA), as
designated by the North Carolina Marine Fisheries Commission.
3) CAMA Major Permit No. 90-97, which was originally issued to Bennett Brothers
Yachts, Inc. on July 2, 1997, authorized construction of a 78-slip open water marina
with associated development. No dredging activities were proposed or authorized
as a part of the originally permitted project.
4) The proposed project involves periodic dredging of areas in and around the existing
marina facility. The N.C. Division of Coastal Management has determined that the
proposed project consists of new dredging in a Primary Nursery Area.
Approximately 87,000 square feet of Primary Nursery Area habitat would be
excavated as a result of the proposed project.
5) During the course of the joint State and federal permit application review process,
N.C. Division of Marine Fisheries stated that, "the new dredging will have a
significant adverse impact on the estuarine resources in the project area and objects
to the project." The N.C. Wildlife Resources Commission also supported the N.C.
Division of Marine Fisheries recommendation for denial of the permit.
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
Bennett Brothers Yachts, Inc.
December 23, 2009
Page 2
Additionally, the N.C. Division of Water Quality indicated that they were heading
towards denial of the required 401 Water Quality Certification due to a finding that
the adverse impacts to the Primary Nursery Area would result in a removal or
degradation of significant existing water quality uses.
6) Based upon the above referenced findings, the Division has determined that the
proposed project is inconsistent with the following rules of the Coastal Resources
Y
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 "Before being granted a permit
by the CRC or local permitting authority, there shall be a finding that the
applicant has complied with the following standards: 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
Bennett Brothers Yachts, Inc.
December 23, 2009
Page 3
vegetation, or significant areas of regularly or irregularly flooded coastal
wetlands."
f) 15A NCAC 07H.0208(1)(B), which states "Marinas which require dredging
shall not be located in primary nursery areas nor in areas which require
dredging through primary nursery areas for access."
Given the preceding findings, it is necessary that your request for issuance of a Major
Permit under the Coastal Area Management Act and State Dredge and Fill Law 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
§ 150B 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 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,
LA , I-A?r
J es H. Gregson
cc: Colonel Jefferson M. Ryscavage - U.S. Army Corps of Engineers, Wilmington, NC
David Kennedy, Director - OCRM/NOAA, Silver Spring, MD
Dave Timpy, USACE
DCM - Wilmington