20181699 Ver 1_DCM Permit_20200701 (3)

Strickland, Bev
From:
Sent:
To:
Subject:
Attachments:
Sorry. Wrong attachment before.
X
Bodnar, Gregg
Wednesday, July 1, 2020 11:00 AM
Mairs, Robb L
RE: CRC final order -Shinn Creek Estates
2020-02-19_revised_FAD.pdf
From: Mairs, Robb L <[e-mail]>
Sent: Wednesday, July 1, 2020 10:57 AM
To: Bodnar, Gregg <[e-mail]>
Subject: RE: CRC final order -Shinn Creek Estates
Sorry man, I don't see the CRC-VR-10 final order that Mary references in her attached letter.
Thanks,
From: Bodnar, Gregg
Sent: Wednesday, July 1, 2020 10:41 AM
To: Mairs, Robb L <[e-mail]>
Subject: RE: CRC final order -Shinn Creek Estates
That should be it.
X
From: Mairs, Robb L <[e-mail]>
Sent: Wednesday, July 1, 2020 10:40 AM
To: Bodnar, Gregg <[e-mail]>
Subject: RE: CRC final order -Shinn Creek Estates
Do you have the final order as well?
From: Bodnar, Gregg
Sent: Wednesday, July 1, 2020 10:34 AM
To: Mairs, Robb L <[e-mail]>
Subject: RE: CRC final order -Shinn Creek Estates
Here you go.
G regg
1

From: Mairs, Robb L <[e-mail]>
Sent: Wednesday, July 1, 2020 10:04 AM
To: Bodnar, Gregg <[e-mail]>
Subject: CRC final order —Shinn Creek Estates
Hey Gregg,
How can I get a copy of the final order for this variance? I was hoping to review it before a call with Raleigh.
Thanks,

STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
IN THE MATTER OF:
PETITION FOR VARIANCE
BY SHINN CREEK ESTATES HOA
BEFORE THE NORTH CAROLINA
COASTAL RESOURCES
COMMISSION
CRC-VR-19-10
FINAL AGENCY DECISION
Revised
On December 19, 2019, Petitioner Shinn Creek Estates HOA ("Petitioner" or "HOA")
submitted a request for a variance from 15A N.C. Admin. Code 07H .0206(c), .0208(b)(a)(4),
020 8 (a)(2)(A), and .0208(b)(1) to authorize a permit so that Petitioner could perform new
dredging in the S-channel and access the Atlantic Intercoastal Waterway ("AIWW") and other
navigable waters. Pursuant to N.C. Gen. Stat. § I I3A-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 (hereinafter 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 I. Clark Wright, Esq. appeared on behalf of Petitioner.
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 the
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.
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 before the request was submitted to the Commission,
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. r. 07J .0702(d). As in any
court, the parties appearing before the decision -maker are responsible for developing and
presenting evidence on which a decision is made. 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.
FACTS STIPULATED TO BY PETITIONER AND RESPONDENT DCM
1. Petitioner is Shinn Creek Estates Homeowners Association, Inc.
("Petitioner" or "HOA"), a North Carolina Non -Profit Corporation
registered with the North Carolina Secretary of State's Office in 1996.
Shinn Creek Estates is a 36-lot residential subdivision with common -area
property and common amenities owned by the HOA.
2. Petitioner acquired title to the common area property relevant to this
variance request through a General Warranty Deed, dated September 14,
2000, recorded in Book 2819, Page 792 of the New Hanover County
Public Registry, a copy of which is attached. The subdivision plat for the
HOA is recorded at Plat Book B36, Pages 210-11 and Plat Book B38,
Page 66 of the New Hanover County Registry.
3. The HOA's common -area property (the "Site") consists of common area
land (some of which is riparian land), a gravel drive with parking area, a
boat ramp, and several boat docks. The Site is adjacent to a maintained
boat basin and channel that connects to Shinn Creek by the area called the
"S-Channel." Shinn Creek then connects to the federally maintained

Atlantic Intracoastal Waterway ("AIWW"), near Masonboro Inlet and the
south end of Wrightsville Beach. The waters of the boat basin, channel, S-
Channel and Shinn Creek are classified as SA, High Quality Waters
("HQW") by the Environmental Management Commission and are
classified as a Primary Nursery Area by the Marine Fisheries Commission.
These waters are not open to the harvest of shellfish.
4. Aerial and ground -level photographs of The Site are part of the power
point presentation [to the Commission]. This includes the historic images
from the New Hanover County website of the area for 1966, 1981 and
1989 with the Site circled. This also includes images from Google Earth
taken between 1993 and 2019, including a recent aerial image depicting
the proposed dredging route and the historic route used- as alleged by
Petitioner. Also included is a 1956 image with information written on it by
Petitioner's Authorized Agent.
5. Based on historic aerial photography, it appears the boat basin and access
channel were initially excavated prior to 1970 and before the enactment of
the Coastal Area Management Act ("CAMA") and the State Dredge & Fill
Law ("D&F"). The first time dredging was undertaken pursuant to a
CAMA/D&F permit was through CAMA Major Permit No. 72-82 in 1982
by Joseph Rogers to maintain the 25' by 30' boat basin to -5' MLW and to
maintain the access channel to 20' by 670' and -5' MLW. A 1996/97
modification request first proposed excavation of the S-Channel area, and
permit files do not contain information to indicate if this modification was
permitted. CAMA Major Permit No. 72-82 was transferred to Petitioner
HOA in 2007 and expired in 2015. A summary of the permit history
compiled by DCM Staff is found in the DCM Field Investigation Report.
No permit has been found authorizing the dredging of the S-Channel area.
6. On November 7, 2018, DCM first received Petitioner's CAMA
Major/D&F Permit Application, and it was deemed complete on
November 27, 2018. Petitioner's authorized CAMA agent is Land
Management Group, Inc. Petitioner proposed the maintenance excavation
of the 25' by 30' boat basin (to —3 MLW), the maintenance excavation of
the 8' by 623' maintained channel (to -3 MLW) and the (apparently)
never -before -permitted dredging of the 8' by -460' (to -3' MLW) of the S-
Channel area. Petitioner's Application estimated that the approximately
600 cubic yards of dredged material would be placed at a privately -owned
and commonly -used Shore Acres Company spoil disposal site located
approximately 0.3 miles north of the Site, and would be dredged using the
bucket -to -barge method. Initially, Petitioner also proposed the
development of four wooden breakwaters at the perimeter of the S-

al
Channel (two 40' long and two 60' long), though those breakwaters were
withdrawn from the Revised Application dated April 10, 2019. .
7. As part of their application, Petitioner submitted a document entitled
Historical Narrative, a series of historic aerial photos of the Site, an
affidavit of Alvin D. Rogers, and an affidavit of Thomas Canady. These
documents contend that among other things, the S-Channel area used to be
passable by the Rogers family boat a low tide, but that this area shoaled in
during the 1990's. Both affidavits reference a plat of the area recorded at
Plat Book 5, Page 90 of the New Hanover County Registry.
8. Also as part of their application, Petitioner submitted a document entitled
"Water Quality Monitoring Report" dated October 2018 and prepared by
Petitioner's agent, Land Management Group, Inc. This six -page report
summarizes a one-time water sampling event at eight locations between
the boat basin and the AIWW looking at the dissolved oxygen ("DO")
levels. In response to this variance petition, DMF staff provided a written
response summarizing their concerns about this report.
9. The proposed dredging work is proposed to take place in the Estuarine
Waters, Public Trust Areas, and Estuarine Shorelines sub -category of the
Coastal Shorelines Areas of Environmental Concern ("AECs"). Pursuant
to N.C.G.S. I I3A-118, CAMA/D&F permit authorization is required for
the proposed development.
10. As part of the CAMA/D&F Major Permit process, notice of the proposed
dredging project was sent to the adjacent riparian neighbors. In this case,
notice was sent to the following:
Scott & Linda Peterson of 6429 Shinncreek Lane, received on
11/16/18.
Bradley & Carolyn Johnson of 6451 Shinnwood Road, received on
11/20/18
Bill & Jane Henderson of 6432 Shinncreek Lane, received on
11/19/18
The adjacent riparian owners' properties are shown on a parcel map which
is part of the PowerPoint presentation to the Commission. DCM Staff did
not receive any objections from these adjacent riparian owners, and all
three have submitted letters in support of the project as noted in a fact
below.
11. 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 December 14, 2018 publishing of notice in the
Wilmington Star Newspaper. DCM Staff did not receive any objections
from the public regarding this proposed dredging project.
12. 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.
13. On December 7, 2018, DCM's Field Representative submitted his
comments to the Major Permitting staff, indicating that while the proposed
dredging of the boat basin and maintenance dredging of the access channel
appeared to be consistent with the CRC's rules, the proposed new
dredging of the S-Channel in the PNA was inconsistent with the CRC's
rules.
14. On January 2, 2019, the Division of Marine Fisheries ("DMF") submitted
its objections, dated December 14, 2019, to DCM. DMF's objection memo
was coupled with the December 19, 2019 written concurrence of DMF
Director Murphey. DMF objected to the proposed project, specifically to
the proposed breakwaters and to the new dredging in a PNA. DMF also
raised concerns about the proposed maintenance dredging of the channel
leading to additional erosion and sloughing of sediment into the channel
and the erosion of coastal wetlands in the area, as purportedly shown in
the historic aerial photographs of the Site.
15. On January 24, 2019, the Division of Water Resources put the application
on hold waiting for federal comments from NMFS and for the applicant to
address DMF's comments. On January 13, 2020, DWR denied Petitioner's
401 water quality certification request through a letter, stating that the
agency was required to do so in light of the CAMA permit denial.
16. On January 30, 2019, the City of Wilmington commented that it objected
to the breakwaters as the city code prohibited them within 35 feet of a
[wetland] resource. Petitioner ultimately removed the proposed
breakwaters from its permit application.
17. On February 11, 2019, the Petitioner's authorized agent requested a
meeting with DMC and DMF to discuss resource impact issues. DCM's
reply recommended that NMFS and DWR also participate in the meeting.
18. On February 27, 2019, the Petitioner's authorized agent met with
representatives of DCM, Division of Marine Fisheries ("DMF"), Division
of Water Resources ("DWR"), the NC Wildlife Resources Commission

C�
("WRC"), and the National Marine Fisheries Service ("NMFS") to discuss
resource impact issues and DMF objections. At this time, the Petitioner
proposed removing the breakwaters from the project, added proposed
channel markers, and proposed additional oyster reef development as a
mitigation measure.
19. On March 24, 2019, DCM received an email from the Army Corps of
Engineers forwarding a March 11, 2019 letter from the NMFS. This letter
indicated that it had not received any revised plans for this Site, and so its
recommendations included 1) a recommendation that any permit not
authorize the proposed breakwaters, 2) a recommendation that any permit
not authorize the proposed new dredging, and 3) a recommendation that
any permit authorize maintenance dredging only between October 1 to
March 31.
20. On April 3, 2019, the Army Corps of Engineers sent a letter to DCM
indicating the conditions that should be required if a CAMA/D&F Permit
was issued. These conditions included
"conditioning out" the proposed breakwaters and proposed new dredging,
and suggested a dredging window for the maintenance dredging, along
with a number of standard conditions.
21. On April 9, 2019, DCM received a call from Petitioner's authorized agent
(LMG's Steve Morrison) indicating that he had met separately with NMFS
regarding the project and requested putting the federal permit review on
hold. Mr. Morrison also indicated that he met two weeks prior with DWR
staff, and with other agencies. DCM staff were not present at the meetings.
He also requested additional aerial photos that DCM may have depicting
the S-Channel area.
22. On April 10, 2019, DCM received revised drawings from Petitioner's
authorized agent showing the proposed addition of more oyster shell reef
development, proposed the addition of channel markers, and proposed the
removal of the proposed breakwaters. Copies of these revisions were sent
out to representatives of the Corps, DMF, NMFS, and DWR. In an April
11, 2019 email, a NMFS representative indicated that the design changes
did not warrant a change to their comments and that they "have no plans to
agree to modifications at this point." In an April 11, 2019 email, a DMF
representative indicated that the design changes did not alleviate DMF's
concerns about new dredging in PNA habitat, that it was not DMF "policy
to mitigate impacts by allowing habitat trade-offs", and that DMF "would
again object to the dredging."

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23. On April 17, 2019, DCM received additional aerials in an email from
Petitioner's authorized agent, stating the agent's belief that the images
"seem to indicate potential past channel maintenance through the subject S
curve within the access to the intracoastal waterway" and asking DCM to
consider this information.
24. On April 22, 2019, DCM denied Petitioner's revised CAMA/D&F Major
Permit Application for the reasons set forth in the agency's denial letter.
25. Petitioner stipulates that its proposed activities violate 15A NCAC
07H.0206(c); 15A NCAC 07H.0208(a)(2)(A); and 15A NCAC
07H.0208(b)(1) as stated in DCM's April 22, 2019 denial letter.
26. In anticipation of this variance request, Petitioner obtained 14 comment
letters in support of Petitioner's Variance Request from members of the
HOA including:
• Brooke Bailey 6329 Shinn Creek Ln.
• Jason Carroll
• Lamparte
• Brian Thomas
• John Anderson
• Gina Taylor
• Scott/Linda Peterson
• Sweeny -Henderson
• Canady
• Kuronen
• Dana Shumate
• Dennis Anderson
• Christine Dolan
• Ari & Amie Cofni
6408 Shinn Creek Ln.
6412 Shinn Creek Ln.
6416 Shinn Creek Ln.
6424 Shinn Creek Ln.
6425 Shinn Creek Ln.
6429 Shinn Creek Ln.
(Adjacent Riparian Owner)
6432 Shinn Creek Ln.
(Adjacent Riparian Owner)
6309 Shinnwood Rd.
3100 Wescot Court
3102 Welcome Lane
6324 Shinn Creek Ln.
6421 Shinn Creek Ln.
6333 Shinn Creek Ln.
In addition to these HOA members, Adjacent Riparian Owners Bradley
and Carol Johnson of 6451 Shinnwood Road also provided a letter in
support.
27. In anticipation of this variance request, Petitioner obtained a six -page
written review of the proposed dredging of the S-Channel by Troy Alphin,
who works as research faculty at the UNCW Department of Biology and
Marine Biology. The parties stipulate that while Mr. Alphin has expertise
in fields related to his review, the parties further stipulate that there has
been no process to establish Mr. Alphin as an "expert" as that term of art

N.
is used in legal settings, including no opportunity for Staff to cross-
examine Mr. Alphin on the contents of the review and how it came to be,
and the parties encourage the Commission to consider this when reading
his un-sworn report and considering the four variance criterion.
28. In anticipation of this variance request, Petitioner obtained a two -page
statement from Petitioner's authorized agent, Land Management Group
and signed by Steve Morrison of LMG, summarizing his/LMG's opinion
regarding possible impacts from Petitioner's proposed dredging. The
parties stipulate that while Mr. Morrison has some expertise in fields
related to his review, the parties further stipulate that there has been no
process to establish Mr. Morrison as an "expert" as that term of art is used
in legal settings, including no opportunity for Staff to cross-examine Mr.
Morrison on the contents of the statement and how it came to be, and the
parties encourage the Commission to consider this when reading the un-
sworn statement and considering the four variance criterion.
29. In anticipation of this variance request, Ben Stephenson, a member of
Petitioner's Board, signed an affidavit describing his knowledge about the
Site and past efforts to seek permit approval for the proposed dredging.
30. On December 31, 2019, Petitioner filed its Variance Request and proposed
supporting materials through counsel, requesting that the Commission
hear this matter at its February 2020 meeting.
31. Petitioner is represented by Clark Wright of Davis Hartman Wright PLLC.
DCM Staff are represented by DEQ Assistant General Counsel Christine
Goebel.
EXHIBITS PROVIDED TO THE COMMISSION BY PETITIONER AND RESPONDENT DCM
1. 2000 Deed to HOA of Common Area property at 2819/792
2. Subdivision Plats at B36/210-11 and B38/66
3. DCM Field Investigation Report
4. Petitioner's CAMA/D&F Major Permit Application, original and as
revised
5. Historical Narrative, historic aerial photographs and affidavits of
Alvin D. Rogers and Thomas Canady with Plat 5/90 attached
6. Water Quality Monitoring Report by Petitioner's agent Land
Management Group
7. DMF written concerns about LMG's Water Quality Monitoring
Report
8. Adjacent Riparian Neighbor Notice and Certified Mail receipts, map
of these parcels

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9. Copy of on -site placard and newspaper publication request materials
10. Dec. 7, 2018 recommendation from DCM Field Representative
11. DMF Comments, including Dec. 14, 2018 Memo and Dec. 19, 2018
Director's cover letter
12. Jan. 13, 2020 401 denial letter
13. Jan. 30, 2019 comments from the City of Wilmington
14. Feb. 11, 2019 email from agent re: meeting and DCM response
15. Mar. 24, 2019 email from Corps forwarding Mar. 11, 2019 NMFS
letter
16. Apr. 3, 2019 letter from Corps with comments
17. Apr. 11, 2019 comments on revised plan from NMFS and DMF
18. Apr. 17, 2019 email from agent with additional aerials
19. Apr. 22, 2019 DCM Denial Letter
20. 2019 Google Earth image with proposed dredge route and historic
route noted by Petitioner
21. Series of six aerial photos from 1956-2010 with notations by
Petitioner
22. 14 letters from owners of lots in Shinn Creek Estates Subdivision in
support of proposed dredging plus Adj. Rip. Own. Brad Johnson
23. Opinion of Troy Alphin and Alphin CV
24. LMG 2-page statement re: water quality and variance
25. Ben Stephenson, Board Member of HOA, Affidavit
26. Powerpoint Presentation with aerial photographs of the site.
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-120.1(a) and 15 NCAC
07J .0703(f) which must be found before a variance can be granted as set forth below.
a. Strict application of the Commission's Rules relating to dredging in a Primary
Nursery Area will cause unnecessary hardships.
The Commission affirmatively finds that strict application of the rules cited in DCM's
denial letter would cause Petitioner unnecessary hardship. These include, 15A N.C. Admin.
Code 07H .0206(c) (estuarine waters management objectives); 15A N.C. Admin. Code 07H
.0208(b)(a)(4) (definition for primary nursery area ("PNA")); 15A N.C. Admin. Code 07H

10
.0208(a)(2)(A) (requirement that project be sited to avoid significant adverse impacts to marine
resources); and 15A N.C. Admin. Code 07H .0208(b)(1) (avoid PNAs, shellfish beds and
submerged aquatic vegetation). These rules are designed to limit impacts to PNAs and protect
the coastal marine environment.
The Commission finds that strict application of the Commission's rules disallowing new
dredging in PNA habitat would cause the HOA unnecessary hardships as the proposed dredging
in the S-channel to -3' mean low water ("MLW") would allow the HOA's members to maintain
long-standing pre-CAMA access to the AIWW from their permitted boat basin and channel.
DCM advised the Commission in its Staff Recommendation that following the shoaling of the
historic route over time and the establishment of coastal wetlands in that area, the preferred route
to the AIWW is now through the S-channel to the south because this route is shorter. The
Commission agrees. In addition, the Commission notes that Petitioner has revised the application
to limit impacts to the coastal environment.
For these reasons, the Commission affirmatively finds that Petitioner has shown that
strict application of its rules would cause unnecessary hardship and Petitioner has met the first
factor without which a variance cannot be granted.
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, Petitioner's property includes a pre-
CAMA and (likely) pre-PNA-designated boat basin and channel. Petitioner has had access to the
AIWW for decades. This access was maintained by permitted dredging in 1982. The historic route
to the AIWW located north of the S-channel shoaled in over time. While shoaling over time on its

11
own is not necessarily a peculiar condition in a dynamic coastal marsh and creek systems such as
this, the shoaling of the S-channel area between two maintained channels removes long-standing
access to this site and is a condition 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 property and has met the second factor required
for the grant of its variance request.
C. Petitioner has demonstrated that the hardship does not result from actions
taken by Petitioner.
The Commission affirmatively finds that Petitioner has demonstrated that the hardship does
not result from its actions. The Commission notes that the HOA, after considerable pre -application
consultation with DCM and other resource agencies, has proposed a modest channel to
accommodate smaller (14-foot by 24-foot) shallow -draft vessels traditionally used by members of
the HOA to navigate from their boat basin and channel to the AIWW. In addition, the Commission
is aware that because the boat basin and access channel was developed pre -LAMA, and may have
also been developed prior to designation of the area as a PNA by the N.C. Marine Fisheries
Commission. This situation was in existence before the CAMA and the Commission's rules
limited dredging in PNAs. Petitioner has proposed a -3' MLW depth for the entire footprint of the
project and an 8-foot width through the channel and S-channel. Petitioner has also proposed the
placement of channel markers to keep boats navigating within the proposed channel thereby
reducing impacts to the surrounding marsh system. The Commission notes Petitioner's willingness
to minimize the scope of the proposed dredging and prevent adverse impacts to the PNAs.
For these reasons, the Commission affirmatively finds that Petitioner's actions did not
cause the hardship and that Petitioner has met the third factor required for a variance.

12
d. Petitioner has demonstrated that the requested variance is consistent with the
spirit, purpose and intent of the Commission's rules, will secure public safety
and welfare, and will preserve substantial justice.
The 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 prohibition against new dredging in designated PNAs for the following reasons:
There has been a boat basin and channel with access by shallow -draft vessels to the AIWW since
before CAMA. Following the shoaling of the historic route, members of the HOA have used the
S-channel to access an existing maintained channel to the south. However, the shoaling of the S-
channel has significantly limited this long-standing access. While there may be some temporary
impacts to the PNA habitat as a result of dredging, the proposed modest channel will allow
continued access for shallow -draft vessels to the AIWW, is designed to limits the impacts, and
with the use of channel markers will reduce impacts to the surrounding marsh by navigating
vessels. In addition, the proposed oyster shell habitat may provide some increase in nursery habitat,
and the proposed dredging may offer some improvements in water quality.
Second, the Commission affirmatively finds that public safety and welfare will be secured
by allowing the HOA members to maintain their long-standing access to the AIWW from the
existing boat basin and channel by dredging the shorter S-channel and in this way avoiding greater

13
impacts that might follow from dredging the longer route historically used to access the AIWW.
In addition, the addition of channel markers may help keep boaters within the channel reducing
impacts from boats navigating outside the proposed channel. Finally, although there may be some
impacts to the PNA habitat in the S-channel from dredging, the proposed width and depth are fairly
limited. Although, DWR issued a letter officially denying the 401 Water Quality Certification for
the project as amended based on DCM's CAMA permit denial, the denial was without prejudice
to resubmit. DMF's objections to the proposed dredging were focused on the breakwaters that
were part of the initial application. These have been removed from the project design. Finally,
Petitioner's proposed mitigation using an oyster shell reef development may result in increased
nursery function, as noted by Mr. Alphin in his report.
Finally, the Commission affirmatively finds that the proposed project will preserve
substantial justice because allowing dredging of the S-channel will preserve the long-standing use
of this area for navigation by small, shallow -draft vessels between the HOA's pre-CAMA boat -
basin and maintained channel to the maintained channel to the south in order to access the AIWW.
For these reasons, the Commission affirmatively finds that Petitioner has met the fourth
factor required by N.C.G.S. § 113A-120.1(a).
ORDER
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 the parties provided to the Commission as described above. However, the Commission is

14
not bound by the parties' stipulation of facts. The Commission reserves the right to reconsider the
granting 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 19t' day of February 2020.
4,1
M. Renee Cahoon Chair
Coastal Resources Commission

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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing REVISED FINAL AGENCY
DECISION upon the parties by the methods indicated below:
METHOD OF SERVICE
Attorney for Petitioner: U.S. Mail and Electronically:
I. Clark Wright, Jr., Esq. [e-mail]
Davis Hartman Wright, PLLC
209 Pollock Street
New Bern, NC 28560
Attorney for NC Division of Coastal Manazement Electronically:
Christine A. Goebel [e-mail]
Assistant General Counsel
NC Department of Environmental Quality
217 West Jones Street
Raleigh, NC 27603
Braxton C. Davis, Executive Director Electronically:
Angela Willis, Administrative Assistant [e-mail]
Division of Coastal Management [e-mail]
400 Commerce Ave.
Morehead City, NC 28557
Linda Painter, CFM, CZO, CAMA LPO Electronically:
New Hanover County [e-mail]
Planning and Land Use
230 Government Center Dr., suite 110
Wilmington, NC 28403
This the 19th 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