20181699 Ver 2_USACE Moving to Denial Letter_20201120

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
November 19, 2020
Regulatory Division
Action ID No. SAW-2014-01431
Shinn Creek Estates HOA
Attn: Mr. Ben Stephenson
6433 Shinn Creek Lane
Wilmington, North Carolina 28409
Dear Mr. Stephenson,
Please refer to your December 11, 2018 application in which you requested
Department of the Army (DA) authorization to conduct maintenance and new dredging
and to install breakwaters associated with an existing private docking facility located at
6432 Shinn Creek Lane, adjacent to the AIWW, in Wilmington, New Hanover County,
North Carolina. Pursuant to the CAMA-Corps Programmatic Permit process, this office
subsequently advertised the proposal to federal agencies and requested comments by
March 12, 2019. Included in the email was our request to initiate Essential Fish Habitat
(EFH) consultation, pursuant to the Magnuson -Stevens Fishery Conservation and
Management Act, with the National Marine Fisheries Service Habitat Conservation
Division (NMFS HCD) office. In a March 11, 2019 letter (attached), NMFS HCD
expressed their objections to the proposed S-curve dredging and the installation of the
breakwaters based upon fisheries resource impacts within waters designated as
Primary Nursery Areas (PNAs). As a result of this consultation, the Corps provided our
April 3, 2019 draft conditions to the North Carolina Division of Coastal Management (NC
DCM), which prohibited breakwater construction and new dredging of the area identified
as the "S-Curve" or "S-Channel" but authorized the maintenance dredging of the basin
and access channel.
Upon receiving both Federal and State agency comments, your agent, Land
Management Group (LMG), provided an April 10, 2019 revision to the proposed work.
This modification removed the proposed breakwaters and added oyster shell placement
in a 4,895 square foot area of shallow bottom habitat. After review of the revision, the
NC DCM CAMA Permit and the NC Division of Water Resource (NC DWR) 401 Water
Quality Certification were denied on April 22, 2019 and January 13, 2020, respectively.
The project was then approved by the Coastal Resources Commission (CRC) variance
and the State CAMA Permit No. 29-20 was subsequently issued on March 3, 2020.
Regarding the NC DWR 401 Certification, it was brought to our attention that your agent
has asked for an appeal of the 401 Certification for the project as approved by the
CAMA permit. To our knowledge, the certification has not been issued.

-2-
Your April 1011 revision was circulated by our office to the Federal agencies, as well
as a follow-up consultation effort regarding EFH. The NMFS HCD responded in a June
12, 2020 email (attached) stating that their objections to your proposal expressed in
their March 11, 2019 letter remain unchanged. These objections are based on the new
dredging of waters designated as a Primary Nursery Area (PNA). To date, information
provided to our office for the proposal has been inadequate in addressing the EFH
concerns of NMFS HCD. If your intention is to continue pursuit of the S-curve dredging
and to rebut NMFS HCD objections, it is strongly recommended that an Essential Fish
Habitat Assessment be developed in order for our office to reinitiate the EFH
consultation. Without further information to alleviate NMFS HCD objections, our office
will be moving toward the denial of your project as currently proposed. Submittal of this
information must be received by our office no later than November 30, 2020.
Otherwise, our office will be finalizing the DA permit denial.
Another available option is to seek DA authorization by way of Nationwide permits 35
and 18 for the maintenance dredging of the existing access channel and boat basin
(eliminating the S-Curve dredging) and oyster shell placement. This option was
communicated to your agent, Mr. Steve Morrison of LMG, in a June 12, 2020 email.
Questions or comments may be addressed to Ms. Liz Hair Wilmington Field Office,
Regulatory Division, telephone [phone] or email at
[e-mail].
Sincerely,
MCLENDON.0 Digitally signed by
MCLENDON.C.SCOTT.12
.SCOTT.12296 29682071
Date: 2020.11.19
82071 15:40:51-05'00'
Scott McLendon,
Chief, Regulatory Division
Wilmington District
Enclosures (2):
Electronic Copy Furnished:
Mr. Steve Morrison, Land Management Group
Electronic Copy Furnished (without enclosures):
USEPA; Mr. Todd Allen Bowers
NCDEQ/DCM; Ms. Tara McPherson
NCDEQ/DWR; Mr. Paul Wojoski/ Mr. Robb Mairs
USFWS; Mr. Pete Benjamin/Mr. John Ellis
NMFS; Mr. Pace Wilber/Ms. Twyla Cheatwood

UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
NATIONAL MARINE FISHERIES SERVICE
Southeast Regional Office
26313th Avenue South
St. Petersburg. Florida 33701-5505
http:ftsero. n rnfs. noaa.gov
March 11, 2019
(Sent via Electronic Mail)
Colonel Robert J. Clark, Commander
U.S. Army Corps of Engineers Wilmington District
69 Darlington Avenue
Wilmington, North Carolina 28403-1398
Attention: Sarah Hair
Dear Colonel Clark:
F/SER47:TC/pw
NOAA's National Marine Fisheries Service (NMFS) reviewed the public notice for Action ID: SAW-
2014-01431 dated February 12, 2019. Ben Stephenson, Shinn Creek Estates HOA, proposes maintenance
dredging within waters of an existing access channel and basin, new dredging to create a new access
channel, and installation of two breakwaters. The proposed work would be adjacent to the Atlantic
Intracoastal Waterway (AIWW) and associated with an existing private docking facility in New Hanover
County. The Wilmington District's initial determination is the proposed project may affect adversely
0.21 acres of essential fish habitat (EFH) or associated fisheries managed by the South Atlantic Fishery
Management Council (SAFMC), the Mid -Atlantic Fishery Management Council (MAFMC), or NMFS.
As the nation's federal trustee for the conservation and management of marine, estuarine, and diadromous
fishery resources, the NMFS provides the following comments and recommendations pursuant to the
authorities of the Fish and Wildlife Coordination Act and the Magnuson -Stevens Fishery Conservation
and Management Act (Magnuson -Stevens Act).
The applicant proposes to excavate an existing/new access channel and basin adjacent to the AIWW. The
initial dredging event would remove approximately 600 cubic yards of material from an area measuring
eight feet by 1,085 feet within the existing channel between the AIWW and the boat basin.
Approximately 460 feet of this channel, identified in the application as the "S-Curve" or "S-Channel,"
would be new dredging. The proposed final water depth for the channel would be -3 feet MLW. Existing
water depths within the area of the proposed dredging range from 0.0 to -1.5 feet MLW. Dredging would
be done using the bucket -to -barge method and deposited at an upland disposal site approximately 0.3
miles south of the project site and adjacent to USACE Disposal Site No. DA-251, which is at the
confluence of the AIWW and Shinn Creek. The applicant also proposes to install four new wooden
breakwaters adjacent to the newly excavated channel in the S-Curve. The lengths of the breakwaters
range from 40 feet to 70 feet and would extend approximately one foot above MHW. The applicant notes
the boat basin and access channel were excavated prior to 1970 and the State of North Carolina issued a
permit in 1982 for maintenance dredging of the boat basin and access channel; this permit did not include
the S-Curve.
The dredging and installing of breakwaters would disturb approximately 0.21 acres of shallow bottom
habitat adjacent to oyster aggregations and bars. The SAFMC identifies shallow sub -tidal bottom in
estuarine waters as EFH for penaeid shrimp and estuarine -dependent species of the snapper -grouper
complex. The MAFMC designates tidal creeks and the estuarine waters as EFH for summer flounder and

bluefish. The State of North Carolina designates the project site a Primary Nursery Area (PNA). The
SAFMC designates PNAs and oysters as HAPCs for estuarine species, such as gray snapper and gag
grouper, in the snapper -grouper complex. HAPCs are subsets of EFH that are rare, particularly
susceptible to human -induced degradation, especially important ecologically, or located in an
environmentally stressed area. Other species of commercial or recreational importance found in the
project area include red drum, Atlantic croaker, spot, Atlantic menhaden, bay anchovy, striped mullet,
weakfish, Eastern oyster, and blue crab. A number of these species serve as prey for fish that are
managed by SAFMC (e.g., king mackerel, Spanish mackerel, and cobia) or for highly migratory fish
managed by NMFS (e.g., billfishes and sharks). The SAFMC provides additional information on EFH
and federally managed species in Volume IV of the Fishery Ecosystem Plan of the South Atlantic Region'
and the Users Guide to Essential Fish Habitat Designations by the South Atlantic Fishery Management
Counci12. Detailed information about the EFH requirements of species managed by MAFMC are
included in separate amendments to individual fishery management plans and in technical reports
prepared by the NMFS Northeast Fishery Science Center'.
After issuance of the public notice, the applicant met with resources agencies to discuss environmental
concerns. Discussions focused on diminished productivity caused by the dredging, especially the new
dredging within the PNA and by installing the breakwaters; sedimentation of oyster habitat caused by the
dredging; and adverse effects to salt marsh habitat that may result from the breakwaters affecting water
flow and sediment transport. While the applicant indicated during the meeting a willingness to remove
the breakwaters from plans, the NMFS has not received notification from the Wilmington District that
this removal has occurred.
EFH Conservation Recommendations
Section 305(b)(4)(A) of the Magnuson -Stevens Act requires the NMFS to provide EFH Conservation
Recommendations for any federal action or permit which may result in adverse impacts to EFH.
Therefore, the NMFS recommends the following to ensure the conservation of EFH and associated
fishery resources:
The permit should not authorize the proposed breakwaters.
The permit should not authorize the proposed new dredging.
The permit should restrict maintenance dredging to the period of October 1 to March 31 to protect
juvenile shrimp and finfish using the shallow bottom habitat.
Section 305(b)(4)(B) of the Magnuson -Stevens Act and its implementing regulations at 50 CFR
600.920(k), requires the Wilmington District to provide a written response to the EFH recommendations
within 30 days of receipt. If it is not possible to provide a substantive response within 30 days, in
accordance with the "findings" between the NMFS and the Wilmington District, an interim response
should be provided. A detail response must then be provided prior to final approval of the action. The
detailed response must include a description of measures proposed by the Wilmington District to avoid,
mitigate, or offset the adverse impacts of the activity. If the Wilmington District's response is
inconsistent with the EFH conservation recommendations, the District must provide a substantive
discussion justifying the reasons for not following the recommendations. The detailed response should be
received by the NMFS at least ten days prior to final approval of the action.
' Available at http://http://safmc.net/fishery-ecosystem-plan-ii-introduction/
2 Available at http://http:Hsafinc.net/download/SAFMCEFHUsersGuideFinalRevAugl7.pdf
' Available at https://www.nefsc.noaa.gov/nefsc/habitat/efh/
2

Thank you for the opportunity to provide these comments. Related questions or comments should be
directed to the attention of Ms. Twyla Cheatwood at our Beaufort Field Office, 101 Pivers Island Road,
Beaufort, North Carolina 28516-9722, or at [phone]
/ for
cc: COE, [e-mail]
USFWS, [e-mail]
NCDCM, [e-mail]
NCDMF, Shane. [e-mail]
EPA, [e-mail]
SAFMC, [e-mail]
F/SER4, [e-mail]
F/SER47, [e-mail]
Sincerely,
PVA /
au
Virginia M. Fay
Assistant Regional Administrator
Habitat Conservation Division

From: Fritz Rohde - NOAA Federal
To: Hair, Sarah E CIV CESAW CESAD (US)
Cc: Twyla Cheatwood - NOAA Federal
Subject: Re: [Non-DoD Source] Re: proposed oyster shell placement Shinn Creek Estates HOA/SAW-2014-01431/New
Hanover
Date: Friday, June 12, 2020 3:18:11 PM
I sent this to Steve earlier today.
Hi Steve
Sorry for the late response but it just slipped my mind. Twyla has responded to Liz and our
comments have not changed. As you know from our many discussions in the past, NMFS
(and DMF) has always opposed new dredging in a Primary Nursery Area. To the best of my
recollection, when I met with you and Mr. Stephenson at your office, my advice was to find
some documentation of what appeared to be past dredging in the S-curve. I see no value in a
conference call. Sorry.
Fritz
On Fri, Jun 12, 2020 at 3:13 PM Hair, Sarah E CIV CESAW CESAD (US)
<Sarah.E.HairQusace.army.mil> wrote:
Hello and Happy rainy Friday!
I hope you both are doing well . I wanted to circle back with you on the request below to see
if your agency intends to revise comments/conditions associated with the Shinn Creek
Estates project. Steve Morrison is inquiring weekly, sometime more than that regarding
status of NMFS comments. I realize it has been 3 weeks since the most recent information
was submitted to your attention, but just wanted to check in.
Thanks in advance,
Liz
From: Hair, Sarah E CIV CESAW CESAD (US)
Sent: Friday, May 22, 2020 5:12 PM
To: Twyla Cheatwood - NOAA Federal <twyla.cheatwoodnnoaa.gov>
Cc: fritz <fritz.rohde&noaa.gov>
Subject: RE: [Non-DoD Source] Re: proposed oyster shell placement Shinn Creek Estates
HOA/SAW-2014-0143I/New Hanover

Twyla and Fritz,
Good afternoon and Happy Memorial Day weekend to you both!
On April 20, 2020, at the request of the applicant's agent (Land Management Group-LMG),
the application for the proposed Shinn Creek Estates project was placed `on hold' or
withdrawn, pending further coordination with agency personnel, as stated by LMG. On May
4, 2020 the applicant's agent submitted additional information to your agency, however did
not request that review of the project be reactivated.
By email dated May 18, 2020 the applicant's agent asked the Corps to re-engage with
NMFS HCD regarding the additional information submitted in the attached email.
According to the applicant, their efforts to reduce impacts associated with the dredge
footprint within the "S-channel", which include the removal of the wooden breakwaters,
installation of channel markers to mark deeper water within the channel, installation of
oyster shell to create oyster beds and enhance fishery habitat within the resource, and
resultant increased DO associated with greater tidal flushing upstream serve as sufficient
avoidance and minimization and mitigative measures relative to the impacts to the resource.
In our last request (March 13, 2020-see email below) we were not considering the "S-
channel" due to the nature of the impacts in the original authorization and comments
received from your agency pursuant to the requirements of the Magnuson -Stevens Fishery
Coordination and Management Act and the Fish and Wildlife Coordination Act.
It is my understanding that the NC DWR has not issued a 401 Water Quality Certification
for the project. The 401 denial was issued in January 2020.
At this time we have been asked yet again to consider the "S-channel" dredging, in light of
the additional information submitted by LMG, and comments provided by UNCWs Benthic
Ecology Lab- Senior Research Associate, Troy Alphin.
Please review the attached when you get a moment, and let me know if your agency's
position has changed, or if your original comments stand.

Have a great weekend.
Liz
From: Twyla Cheatwood - NOAA Federal <twyla.cheatwoodnnoaa.gov>
Sent: Friday, May 1, 2020 2:16 PM
To: Hair, Sarah E CIV CESAW CESAD (US) <Sarah.E.Hair&usace.armymil>
Subject: Re: [Non-DoD Source] Re: proposed oyster shell placement Shinn Creek Estates
HOA/SAW-2014-01431/New Hanover
Liz,
My comments are going to be quick on this one.
The NMFS has no objection to the oyster shell placement.
Thank you for your coordination,
Twyla
On Thu, Apr 23, 2020 at 5:32 PM Hair, Sarah E CIV CESAW CESAD (US)
<Sarah.E.Hairnusace.army.mil> wrote:
Hey Twyla,
I don't think that you did. I was actually looking for the email I sent to you so that I could
send it to Fritz. I was unable to locate it, and thought maybe that I didn't sent it after all, so
thank you for circling back with me on this. Thought maybe I was losing my mind! Lol.
Hope you are doing well.

Liz
Sent from my Verizon, Samsung Galaxy smartphone
Original message
From: Twyla Cheatwood - NOAA Federal <twyla.cheatwoodnnoaa.gov>
Date: 4/23/20 5:03 PM (GMT-05:00)
To: "Hair, Sarah E CIV CESAW CESAD (US)" <Sarah.E.Hair(c�r�usace.army.mil>
Subject: [Non-DoD Source] Re: proposed oyster shell placement Shinn Creek Estates
HOA/SAW-2014-0143 I /New Hanover
Liz,
I can't find where I responded to you on this. Di I? lol
Twyla
On Fri, Mar 13, 2020 at 4:57 PM Hair, Sarah E CIV CESAW CESAD (US)
<Sarah.E.Hair&usace.army.mil> wrote:
Good afternoon Twyla,
I'm not sure if you all have heard that after the Division of Coastal Management denied
the applicant's request to conduct maintenance dredging, new dredging within an area
identified as the S-channel, and installation of oyster shell to create oyster beds (added
after the applicant removed the breakwaters from the proposal), the Coastal Resource
Commission granted the project by variance. Attached for your reference is the

conditioned DCM permit for the project.
I have included the revised plans submitted by the applicant to DCM in April 10, 2019,
which were revised based on agency comment and received after we provided our
original comments to DCM by letter dated April 3, 2019. We provided conditions to
DCM restricting the dredging based on the coordination with your office, pursuant to
the requirements of the Magnuson -Stevens Fishery Coordination and Management Act
and the Fish and Wildlife Coordination Act. I have also attached your agency's
response letter dated March 11, 2019 for reference.
Additionally, on January 13, 2020, the Division of Water Resources denied the 401
certification of the applicant's proposal (also attached).
At this time, since the DCM permit conflicts with our conditions by allowing the
dredging of the S-channel through the CRC variance, we have removed the project
from the Corps/CAMA joint programmatic process and are reviewing the proposal for
maintenance dredging (basin and channel, not the S-curve) and placement of the oyster
shell through nationwide permits.
At this time, we are requesting your comments regarding the proposed oyster shell
placement along the channel as shown in the attached plans.
Please let me know if you have any questions, or need additional information or
clarification on our review.
Thank you,
Liz
Liz Hair
Regulatory Project Manager
Wilmington District

US Army Corps of Engineers
69 Darlington Avenue
Wilmington, NC 28403
Sarah. e.hairnusace. army. mil
910-251-4049
Twyla H Cheatwood
Fishery Biologist
Southeast Region, Habitat Conservation Division
NOAA Fisheries
Beaufort, NC 28516
Office: [phone]
Twula.cheatwood Pnoaa.gov
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Twyla H Cheatwood
Fishery Biologist
Southeast Region, Habitat Conservation Division
NOAA Fisheries
Beaufort, NC 28516
Office: [phone]

Twula.cheatwoodPnoaa.aov
Web BlockedBlockedwww.nmfs.noaa.gov
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