19961054 Ver 2_Staff Comments_20110608

NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director Dee Freeman
Secretary
June 8, 2011
MEMORANDUM
TO: Dave Timpy
U.S. Army Corps of Engineers, Wilmington District
FROM: Rick Shiver "' _'14---
Regional Supervisor
Wilmington Regional Office
Subject: Review of 401 Water Quality Certification application
Bennett Brothers Yachts, Inc. (BBYI)
New Hanover County, NC

On May 10, 2011, the Division of Water Quality (DWQ) received the Public Notice issued by the U.S. Army Corps
of Engineers notifying all interested parties that they had received a 404 individual permit application from Bennett
Brothers Yachts, Inc. (BBYI) seeking to perform dredging at its facility. The application proposes to dredge
approximately 3,924 cubic yards of material from approximately 1.85 acres (80,586 square feet) of shallow bottom
habitat. According to the notice this proposal will achieve a finished depth of -4.5 feet mean low water (MLW) at
the landward side of the main docks, with dredging depths leading down to -11.0 feet MLW at the outer edge of the
proposed limits of dredging. In addition to the impacts proposed, a mitigation proposal was given stating the
intention to deposit 24 tons of rip-rap at the north end of the facility site along the shoreline to reduce sedimentation
in the facility. Also, planting of 2000 individual native marsh grass plants over two years has been proposed in the
area landwards of the southern docks. After review of the Public Notice, the Division of Water Quality (DWQ)
would like to offer the following comments:
1. The waters in the area of the proposed dredging are classified as SC by the DWQ and the Division of Marine
Fisheries (DMF) has designated this area as Primary Nursery Area (PNA). 15A NCAC 02B.0220 (1) & (2)
(Tidal Salt Water Quality Standards for Class SC Waters) state,
"(1) Best Usage of Waters: any usage except primary recreation or shellfishing for market purposes; usages
include aquatic life propagation and maintenance of biological integrity (including fishing, fish and
functioning PNA's), wildlife and secondary recreation;"
"(2) Conditions Related to Best Usage: the waters shall be suitable for aquatic life propagation and
maintenance of biological integrity, wildlife, and secondary recreation. Any source of water pollution
which precludes any of these uses, including their functioning as PNA's, on either a short-term or long-
term basis shall be considered to be violating a water quality standard;"
The application proposes dredging in a PNA that has not been previously dredged. The DMF has recommended
denial of the application based on the fact that dredging would cause significant adverse impacts to the primary
nursery area. In a letter dated June 6, 2011, and signed by the Director of the DMF, the importance of PNA's in
general is discussed with particular significance given to the PNA within the BBYI project area which would be
eliminated by the dredging proposed within this application. Thus by removing the existing usage of the PNA
in the proposed dredging area, the Wilmington Regional Office (WiRO) of the DWQ feels that this would be in
direct contradiction to the following Water Quality Standard: --
No,l;`tt?Carolina
North Carolina Division of Water Quality 127 Cardinal Drive Extension Phone [phone] Customer Service1-877-623-67 , Nafilrall1l
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
?•
15A NCAC 0213.0201 (f) (ANTIDEGRADATION POLICY)
--
Activities regulated under Section 404 of the Clean Water Act (33 U.S.C. 1344) which require a water quality
certification as described in Section 401 of the Clean Water Act (33 U.S.C. 1341) shall be evaluated according
to the procedures outlined in 15A NCAC 2H.0500. Activities which receive a water quality certification
pursuant to these procedures shall not be considered to remove existing uses. The evaluation of permits
issued pursuant to G.S. 143-215.1 that involve the assimilation of wastewater or stormwater by wetlands shall
incorporate the criteria found in 15A NCAC 2H .0506©(1)-(5) in determining the potential impact of the
proposed activity on the existing uses of the wetland per 15A NCAC 2H .0231.
The WiRO feels that the proposed mitigation within the application is inadequate to provide replacement of
existing uses. Furthermore, we believe that the placement of 24 tons of rip-rap along the shoreline of the north
end of the facility and the planting of marsh grass is unrelated to replacing the existing uses of the PNA that will
be eliminated through dredging. The proposed mitigation is intended to simply reduce sedimentation within the
marina. As outlined within the June 6, 2011, letter from the DMF, "At this time the DMF does not consider
mitigation for PNA loss a viable option because the costs and likelihood of failure are too great."
4. The WiRO feels that we cannot recommend issuance of a 401 Water Quality Certification based on the
following:
15 A NCAC 02H.0506 (b) (1-6) (Review of Applications)
(b) The Director shall issue a certification upon determining that existing uses are not removed or
degraded by a discharge to classified surface waters for an activity which:
(1) has no practical alternative under the criteria outlined in Paragraph (f) of this Rule;
(2) will minimize adverse impacts to the surface waters based on consideration of existing
topography, vegetation, fish and wildlife resources, and hydrological conditions under the
criteria outlined in Paragraph (g) of this Rule; . --w.
(3) does not result in the degradation of groundwaters or surface waters;
(4) does not result in cumulative impacts, based upon past or reasonably anticipated future impacts,
that cause or will cause a violation of downstream water quality standards;
(5) provides for protection of downstream water quality standards through the use of on-giiffo"
stormwater control measures; and
(6) provides for replacement of existing uses through mitigation as described at Subparagraph
(h)(1) of this Rule.
5. The WiRO feels 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. Letters from the DMF and 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.
Given the present application and proposal to eliminate the current PNA through dredging, the Wilmington Regional
office recommends that the Division move to deny this application as required by 15A NCAC 2H .0506. This letter
only addresses the application review and does not authorize any impacts to wetlands, waters or protected buffers.
Please be aware that any impacts requested within your application are not authorized at this time by the DWQ.
Please call me at 910-796-7215 or Ian McMillan at 919-807-6300 if you have any questions regarding or would like
to set up a meeting to discuss this matter.
---?:.,; . ? ??• ... ???,.? °`.I??nF^? ;;?. ?_ -.a :adl? ?'?MIII?t?llttt
Cc: Ms. Tricia Bennett - Bennett Brothers Yachts, Inc., 1701 J.E.L. Wade Drive, Wilmington, NC 28401
Bruce Marek - 5489 Eastwind Road, Wilmington, NC 28403
Ian McMillan - DWQ 401 Oversight and Express Unit, Raleigh
Dave Timpy - USACE Wilmington Regulatory Field Office
Anne Deaton - DMF Wilmington
Jessi O'Neal - DMF Wilmington
Molly Ellwood - WRC Wilmington
Robb Mairs - DCM Wilmington Office
Doug Huggett - DCM Morehead Office
WiRO

A*A7 J;A
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
Beverly Eaves Perdue Dr. Louis B. Daniel III
Governor Director
Dee Freeman
Secretary
MEMORANDUM
T0: Dave Timpy
USACE Wilmington District
FROM: Dr. Louis B. Daniel, III, Director
Division of Marine Fisheries
DATE: June 6, 2011
SUBJECT: Bennett Brothers Yachts, Inc.
New Hanover County
I have reviewed the comments provided by the District Manager and/or Bio-Supervisor and
concur with their recommendation(s).
ctor,
Louis B. Daniel, III
C
/f
Deputy Director, Date
Barbara Y. Lupton
Habitat Protection Section Chief, Dat
Anne Deaton
5285 Hwy 70 West, Morehead City, North Carolina 28557
Phone: [phone] FAX: [phone] Internet: www.ncdmf net
'd: Equal Opporg.-Ay '1 Affirmative Action Employer
,One
?lot-thCarol'ina
Natrrm

WDENR
North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
Beverly Eaves Perdue Dr. Louis B. Daniel III
Governor Director
MEMORANDUM:
TO: Dave Timpy, USACE Wilmington District
THROUGH: Anne Deaton, DMF Habitat Section ChiefAID
FROM: Jessi Baker, DMF Habitat Alteration Permit Reviewer
SUBJECT: Bennett Brothers Yachts, Inc.
DATE'_ June 6, 2011
EAMILED
Dee Freeman
Secretary
The North Carolina Division of Marine Fisheries (DMF) submits the following comments pursuant to North Carolina
General Statute 113-131. DMF has reviewed the USACE Public Notice that Bennett Brothers Yachts, Inc. is seeking to
perform dredging at an open slip marina located just north of the Isabella Holmes Bridge on the northeast Cape Fear .
River in a MFC designated Primary Nursery Area (PNA). Shoaling has occurred in the marina area so that some slips are
not deep enough to dock large vessels. The applicant is proposing to excavate approximately 3,942 cy of material from
1.85 acres (80,586 sf) of shallow bottom habitat using hydraulic dredging. The area proposed for dredging consists of
shallow muddy substrate with woody debris and a wetland shoreline. Dredging will be to a depth of -4.5 MLW at the
landward side of the main docks, sloping to approximately -11.0 ft MLW at the outer edge of the proposed dredging
footprint.
In 1997, Bennett Brothers Yachts applied for a permit to construct the marina a'ti"-gs-s-Riated upland structures.
Although the site did not require dredging at that time, DMF responded that any requests to dredge would be
recommended for denial in the future since this area in a designated PNA. Although DMF recommended denial of
applications to dredge in the travel lift pit in 2007 and to dredge two acres in the marina area in 2010, Bennett
Brothers Yachts was granted a variance for both applications by the CRC.
As in the past, DMF recommends denial of this project due to adverse impacts to a PNA. This letter will explain the
importance of PNAs, the value of this particular location as a PNA, and the harmful precedent that would be set by
permitting this project with mitigation.
Primary Nursery Areas
The life history of most estuarine dependent species in North Carolina goes through four stages. Adults spawn in the
ocean, the larvae then drift through inlets into an estuary, and these, now post-larvae, settle to the bottom in nursery
areas. As the post-larvae develop into juvenile fishes, they gradually move out into deeper waters as they grow,
completing the final stage of development. This nursery stage is a critical point in the life history of these species,
since it determines the number of individuals that survive and grow into adults.
5285 Hwy 70 West, Morehead City, North Carolina 28557 One
Phone: [phone] FAX: [phone]T Internet: www.ncdmf.net NorthCarolina
An Equal Opportunity 1 Affirmative Action Employer Na 6ii /&
North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
Nursery areas are defined by the Marine Fisheries Commission (MFC) as "...those areas in which for reasons such as
food, cover, bottom type, salinity, temperature and other factors, young finfish and crustaceans spendthe major
portion of their initial growing season" [15A NCAC 031.0101 (4) (f)). Primary Nursery Areas (PNAs) are those areas in
the estuarine system where initial post-larval development takes place. The purpose of designating the nursery areas
was to maintain undisturbed conditions as much as possible. Following extensive sampling, PNAs were designated by
the MFC in 1977. Each year in May and June, 104 stations continue to be sampled to assess abundance and size
composition of key species, diversity (number of species), and site conditions. Recognizing the critical importance of
nursery areas, the Marine Fisheries, Coastal Resources, and Environmental Management Commissions put in place
rules to protect PNAs from bottom disturbance, dredging, and water quality degradation.
Dredging adversely impacts PNAs because it severely alters the habitat for juvenile fishes. Shallow habitats provide
juvenile fish with protection from large predators, productive bottom which is closer to the light source and may
support a diversity of microalgae, detritus, and prey organisms, and temperatures and salinities that are preferred by
juvenile fishes. By dredging, these benefits are removed and replaced with increases in turbidity during dredging,
sedimentation in surrounding areas, less productive substrate, and potential exposure to buried toxins and low oxygen
waters.
PNA at Bennett Brothers Yachts
One of the DMF juvenile trawl survey stations occurs just upstream of Bennett Brothers Yachts at the mouth of Smith
Creek (Figure 1). Trawl data has been collected here since 1978. From 2003 to 2007, DMF also completed an
electrofishing survey at this station. This area exhibits a high abundance of indicator species (Table 1 and 2), size
composition that is uniformly early juveniles, and a high species diversity. The most commonly occurring species were
spot, Atlantic croaker, bay anchovy, Atlantic menhaden, white shrimp and southern flounder. In addition to these
estuarine species, anadromous fish, such as American and hickory shad and striped bass, and resident freshwater
species such as largemouth bass and catfish also utilize the site during periods of low salinity. With over 84 species
recorded at this site since 1978, overall diversity is high. At first glance, one might think that the shoreline area on a
deep industrialized river would not be a productive nursery area. However, because the Cape Fear River directly opens
to the ocean and has high tidal exchange, large numbers of fish larvae can be transported up the river rapidly. With
limited shallow edge habitat and high use by many types of aquatic organisms, the shallow muddy edges of the Cape
Fear River appear to be very productive and critical nursery areas. The shallow area around Bennett Brothers Yachts
has the characteristics of a productive PNA and the proposed dredging would result in significant adverse impacts to
the biological resources.

Figure 1. Aerial photo showing positions of Isabella Holmes Bridge, Bennett Brothers Yachts, Inc., and the Smith Creek
sampling station.
Table 1. Top ten species caught at the Smith Creek sampling stations from 1978 to 2009 Trawl Survey data with
indicator species in bold.
Species Individuals Rank
Spot 14,631 1
Croaker 7,790 2
Bay Anchovy 7,578 3
Menhaden 4,233 4
White Shrimp 721 5
Southern Flounder 668 6
Hogchoker 596 7
Brown Shrimp 522 8
Grass Shrimp 211 9
Blue Crab 205 10

North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
Table 2. Electrofishing survey results of juvenile fishes from Smith Creek Sampling Station from 2003 to 2007 with
indicator species in bold.
Species Individuals
Spot 1,871
Striped Mullet 742
Menhaden 606
Croaker 531
Inland Silverside 347
Grass Shrimp 332
Bay Anchovy 271
Southern Flounder 35
Brown Shrimp 11
Blue Crab 7
Mitiaation
The USACE and North Carolina Division Water Quality both accept compensatory . mitigation for impacts to wetlands.
Wetlands have been studied extensively and are defined by the 1987 Corps of Engineers Wetlands Delineation Manual
as having particular soil, hydrologic, and vegetative characteristics. Because of this knowledge, one or more of these
characteristics can be successfully enhanced or re-created, often at the site of a former wetland. In this way, the loss_.,_.. of wetland acreage at one location is mitigated for by the replacement of that acreage at another.
PNAs are defined by the abundance, life stage, and diversity of certain fishes. These areas are not characterized by
certain physical parameters that can be constructed or planted, like wetlands, and therefore cannot be replaced
through a traditional mitigation project. Although most PNAs do occur in shallow areas and over certain bottom
types, those are certainly not the only necessary components for a PNA (which make up only 8% of North Carolina
estuarine waters). At thissime DMF does nat musidermi alion for PNA loss a viable option because the costs and.
likelihood of failure are too great. The Division of Marine Fisheries, therefore, recommends denial of this project.
Thank you for the opportunity to provide our comments on this project. Please feel free to contact Jessi Baker at (252)
808-8064 or [e-mail] if you have any further questions or concerns.

Beverly Eaves Perdue
Governor
A,..?.?
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
Dr. Louis B. Daniel III
Director
MEMORANDUM
TO: Doug Huggett
Major Permits Processing Coordinator
FROM: Dr. Louis B. Daniel, III, Director
Division of Marine Fisheries
DATE: July 27, 2009
Dee Freeman
Secretary
SUBJECT: CAMA / DREDGE AND FILL PERMIT
Bennett Brothers Yachts, Inc.
Adjacent to the NE Cape Fear River, on the NE side of the Isabella Holmes Bridge
Wilmington, New Hanover County
I have reviewed the comments provided by the District Manager and/or Bio-Supervisor and
concur with their recommendation(s).
w
uis B. Daniel, III
o ? B a9
-For -puty Director, Date
Barbara Y. Lupton
Habitat Protection Section Chief, Date
Anne Deaton
3441 Arendell Street, P.0 Box 769, Morehead City, North Carolina 28557 One
Phone: [phone] FAX: [phone] Internet. www,ncdrnf.net North C a-rolliina
An Equal Opportunity \ Affirmative Action Employer ('1A1at 1jr"`!1
Beverly Eaves Perdue
Governor
_A_,T
NCDENR
North Carolina Department of Environment and Natural
Division of Coastal Management
James H. Gregson
Director
June 29, 2009
MEMORANDUM:
TO:
FROM:
SUBJECT:
Applicant:
Rich Carpenter
Division of Marine Fisheries .?.......
VWSNABITAT PROTECTION
Dee Freeman
Secretary
Doug Huggett, NC DENR-DCM Major Permits Coordinator
400 Commerce Ave., Morehead City, NC 28557 (Courier 11-12-09)
CAMA / Dredge & Fill Major Permit Application Review
Bennett Brothers Yachts, Inc.
Project Location: adjacent to the NE Cape Fear River, on the NE side of the Isabella Holmes
Bridge, in Wilmington, New Hanover County
Proposed Project: Modification of State Permit No. 90-97 to hydraulically dredge to a depth of
-12 feet at NLW within the footprint of the existing marina
Please indicate below your agency's position or viewpoint on the proposed project and return
this form by July 25, 2009. If you have any questions regarding the proposed project,
contact Holley Snider at [phone], when appropriate, in-depth comments with supporting
data is requested.
REPLY: This agency has no objection to the project as proposed.
This agency has no comment on the proposed project.
This agency approves of the project only if the recommended changes are
in orporated. Spe attached.
f
This ny? to the project for reasons described in the attached
SIGNED DATE
127 Cardinal Drive Ext., Wilmington, NC 28405
Phone: [phone] FAX: [phone] Internet www.nccoastalmanagement.net
An Equal Opportunity'. Affirmative Action Employer

NorthCarolina
AWiltlally
CDENR
North Carolina Department of Environment and Natural Resources
Division of Marine Fisheries
Beverly Eaves Perdue Dr. Louis B. Daniel III Dee Freeman
Governor Director Secretary
July 21, 2009
MEMO TO: Doug Huggett
FROM: Rich Carpenter
SUBJECT: Bennett Brothers Yachts, Inc.
The Division of Marine Fisheries has reviewed the application from Bennett Brothers Yachts,
Inc. on the Northeast Cape Fear River to modify their existing permit (#90-97) by expanding
the dredged area of their marina. The project is located in a primary nursery area and a portion
of the dredging is in an area that has not been previously dredged. The Division prohibits the
use of bottom disturbing fishing gear and Coastal Management rules prohibit new dredging in
order to protect these sensitive areas. Primary nursery areas are essential for post-larval and
juvenile species of finfish, crabs and shrimp because they afford food and protection during a'
vulnerable period of their life cycle. The Division feels that the new dredging will have a
significant adverse impact on the estuarine resources in the project area and objects to the
project. The Division would drop its objection if the scope of the project was reduced to the
areas that have been previously dredged.
Wilmington Regional Office, 127 Cardinal Drive Extension, Wilmington, North Carolina 28557
Phone: [phone]lFAX. 910-350-20041 Internet. www.ricdinfriet
An Lnual Opportunity 1 A.rtirnnative Action Employer
North Carolina
Aatu. 'ally
state of North Carolina
.apartment of Environment,
Health and Natural Resources
Wilmington Regional Office
Division of Coastal Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
Roger N. Schecter, Director
MEMORANDUM;
TO:
FROM:
SUBJECT:
Applicant:
Project Location:
ART4;1.57;;A1
ID FE F1
November 7, 1996
Mr. Bruce Freeman, Director
Division of Marine Fisheries
John R. Parker
Major Permits Processing Coordinator
CAMAIDREDGE & FILL Permit Application Review
ennett Brothers Yachts, Inc.
Adj to t ortheast Cape Fear River, on the north side of the 3rd Street Bridge,
in Wilmington, NC, in New Hanover County
Proposed Project: The construction of a yacht manufacturing and maintenance facility including a
52 slip marina's~-
Please indicate below your agency's position or viewpoint on the proposed project and return this form
by Dec 2, 1996. If you have any questions regarding the proposed project, please contact Tere Barnett
at extension 246. When appropriate, in-depth comments with supporting data is requested.
REPLY: This agency has no objection to the project as proposed.
This agency has no comment on the proposed project.
?1?This agency approves of the project only if the recommended charges are
incorporated. See attached.
This agency objects to the project for reasons described in the attached comments.
RECEIVED ON
SIGNED DATE NOV 2 11996
by D*-HIIBI AT
127 Cardinal Drive Extension, Wilmington, N.C. 28405-3845 • Telephone [phone] • Fax [phone]
An Equal Opportunity Affirmative Action Employer
MEMORANDUM
November 21, 1996
TO: John Parker
FROM: Fritz Rohde
SUBJECT: Bennett Brothers Yacht
The Division of Marine Fisheries has no objection to the
proposed project. Project depths for the marina ensure.that no
dredging is required. But since the waters are classified as
Primary Nursery Area, the Division wants to make sure that-the
applicant understands that any.future dredging, if requested,
will be vigorously opposed and the permit should state "No
dredging".