19961054 Ver 2_Public Notice Comments_20110705 (53)

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(Sent via electronic mail)
Colonel Jefferson Ryscavage, District Engineer
US Army Corps of Engineers
P.O. Box 1890
Wilmington, North Carolina 28402-1890
Attention: David Timay
Dear Colonel Ryscavage:
UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric tration
NATIONAL MARINE FISHERIES SERVICE D
Southeast Regional Office
263 13th Avenue South
St. Petersburg, Florida 33701-55
[phone]; FAX (727) 824-
http://sero.nmfs.noaa.gov/
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NOAA's National Marine Fisheries Service (NMFS) reviewed Action ID No. SAW-2009-01242
dated May 10, 2011. The applicant, Patricia Donavan Bennett for Bennett Brother's Yachts Inc.,
proposes to promote use of an existing marina by dredging 3,942 cubic yards of material from
1.85 acres of shallow water designated a Primary Nursery Area within the Northeast Cape Fear
River, Wilmington, New Hanover County. NMFS previously commented on this project by
letter dated September 30, 2009, in response to the original public notice dated July 1, 2009. In
those comments, NMFS recommended the Wilmington District deny the application but
indicated we would reconsider this recommendation if the NC Coastal Resources Commission
exempted the applicant from abiding by state regulations that prohibit dredging within Primary
Nursery Area and the applicant proposed and committed to adequate compensatory mitigation.
That variance has been granted, and the revised application proposes compensatory mitigation.
Based on its review of the revised application, the Wilmington District's initial determination is
that the proposed project may adversely impact essential fish habitat (EFH) or associated
fisheries managed by the South Atlantic or Mid Atlantic Fishery Management Councils or
NMFS. As the nation's federal trustee for the conservation and management of marine,
estuarine, and diadromous fishery resources, the following comments and recommendations are
provided pursuant to the authorities of the Fish and Wildlife Coordination Act and the
Magnuson-Stevens Fisheries Conservation and Management Act (Magnuson-Stevens Act).
Description of the Revised Project
The proposed project involves approximately 1,910 linear feet of shoreline frontage along the
Northeast Cape Fear River. The current water depths at the site range from 0.0 feet normal low
water (NWL) on the landward side of the existing floating docks to approximately -25.0 feet
NWL on the waterward side of the floating finger piers. The existing facility includes a travel

lift with piers and floating docks that were initially authorized in 1997 to provide approximately
80 boat slips for vessels between 42 feet and 112 feet in length. When initially constructed,
dredging was not needed for the marina to operate, and resource agencies advised the applicant
that future requests to dredge the marina would not be viewed favorably.
In the revised plan, the applicant would utilize a hydraulic dredge to excavate approximately
3,942 cubic yards of material from 1.85 acres of shallow bottom. The. dredging is intended to
reestablish a depth of -4.5 feet mean low water (MLW) at the landward side of the main dock
and gradually increase the depth to approximately -11.0 feet MLW at the outer edge of the
proposed dredging limits. All dredged material would be placed in an upland area on the
applicant's property.
The revised project plans differ from the original plan in that the overall depth of the marina is
reduced by 1 foot from -12 feet MLW in the original plans to -11 feet MLW in the revised plan.
The applicant does not propose to change the number or location of boat slips that are currently
at the site.
The public notice indicates the variance issued by the NC Coastal Resources Commission on
July 13, 2010, would allow excavation of 4,417 cubic yards from 2.0 acres of shallow estuarine
bottom within the existing marina and to deepen the marina to -4.5 feet MLW at the landward
side of the main dock, with a depth of excavation gradually increasing to -12 feet at MLW at the
outer edge of the authorized dredged limits. NMFS notes that volumes and depths referenced in
the variance are inconsistent with the plans described in the current public notice.
Impacts to Essential Fish Habitat
Our previous letter to the Wilmington District dated September 30, 2009, describes EFH within
the project area, and that description is incorporated here by reference. In short, the site of the
proposed project is adjacent to the Northeast Cape Fear River, upstream of the Isabella Holmes
Bridge, approximately 0.85 miles north of the confluence with the Cape Fear River. The waters
of the project area are classified as "SC" by the NC Division of Water Quality and as a Primary
Nursery Area by the NC Division of Marine Fisheries. The South Atlantic Fishery Management
Council (SAFMC) identifies state-designated Primary Nursery Areas as a Habitat Area of
Particular Concern for penaeid shrimp and species within the snapper/grouper complex, such as
grey snapper. Areas designated as HAPCs by the Council and Primary Nursery Areas by the NC
Division of Marine Fisheries afford fishery species exceptional opportunities for growth and
survival of early life stages. Accordingly and in recognition of the important role fisheries play
in coastal communities and economies, these areas receive the highest protection affordable by
state and federal regulation because dredging and other development activities have been shown
in numerous peer-reviewed, scientific studies to reduce value of shallow water habitats to post-
larval and young juvenile fishes, crabs, and shrimp thereby contributing to the degradation of
fisheries.
Compensatory Mitigation
The applicant proposes in the revised plan to offset potential impacts to EFH by:
• Placing 24 tons of rock rip-rap along a specific section of eroding shoreline upstream of
the applicant's property. This erosion prone area is described as a possible source of
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sediments that has resulting in shoaling of the marina. However, the revised application
provides no information, such as a hydrographic study, to verify this assertion. Also,
potential impacts to EFH in the area proposal for riprap are not specified nor is there any
information on how rock fill would be placed at the site. In addition, no information is
provided regarding how this action will prevent sediments form other locations in the
river from accumulating in the applicant's marina.
Transplanting an unspecified species of marsh plants landward of the floating docks in an
area that currently supports emergent marsh. Overall, a total of 2,000 stems of "native
marsh plants" would be transplanted into an area depicted in the public notice as
landward of the southern sections of docks. The "mitigation plan" does not specify the
size (square feet) of the area proposed for transplanting nor does it provide detail
information on how or when it would be implemented; only that it would involve
planting 1,000 plants per year during the months of May and June over two consecutive
years.
Neither of the proposed components of the mitigation is described in sufficient detail to
determine practicality and effectiveness for offsetting the adverse impacts of dredging in a
Primary Nursery Area. It also is important to note that type-for-type mitigation is not proposed.
Mitigation credit is appropriate only if the applicant demonstrates that the proposed mitigation
actions would fully offset the impacts for the project. NMFS recommends the applicant use one
of the several functional assessment methods in common use to demonstrate the mitigation
proposed would be adequate.
EFH Conservation Recommendations
Section 305(b)(4)(A) of the Magnuson-Stevens Act requires NMFS to provide EFH conservation
recommendations when an activity is expected to adversely impact EFH. Based on this
requirement, NMFS provides the following:
EFH Conservation Recommendation
The Department of the Army shall not authorize the project as proposed.
NMFS would reconsider its position if adequate compensatory mitigation were proposed to
offset impacts to the primary Nursery Area. The following deficiencies in the current proposal
are noted:
1. Scope of Dredging - Dredging should be minimized to avoid adverse impacts to public
trust resources. The Wilmington District should make an independent determination
regarding appropriate depth for a marina that services boats that have historically docked
at this site and the depth of dredging should be minimized to the extent possible to allow
the marina to continue operation.
2. Rip-rap Mitigation - The mitigation plan does not provide sufficient detail to determine
benefits versus impacts (positive or negative) that would result from the proposed action.
This rip-rap should be deleted from the project unless a clear benefit is demonstrated.
3. Marsh Mitigation - The proposed Marsh Mitigation Plan provides insufficient detail to be
acceptable. The plan should provide detail on how it will be implemented. For example,
neither the species of marsh plant nor the transplanting techniques are specified and the
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proposal does not include plans to monitor the success of the proposed act o Pg &11 6 F' D. O`C,
criteria that will trigger corrective actions.
4. Functional Assessment - The applicant should use one of the several functional
assessment methods in common use to demonstrate the mitigation proposed would be
adequate.
Section 305(b)(4)(B) of the Magnuson-Stevens Act and its implementing regulations at 50 CFR
600.920(k), requires your office to provide a written response to our EFH recommendations
within 30 days of receipt. If it is not possible to provide a substantive response within 30 days,
in accordance with our "findings' with your Regulatory Functions Branch, an interim response
should be provided to NMFS. A detail response must then be provided prior to final approval of
the action. Your detail response must include a description of measures proposed by your agency
to avoid, mitigate, or offset the adverse impacts of the activity. If your response is inconsistent
with our EFH conservation recommendations, your must provide a substantive discussion
justifying the reasons for not following the recommendation. The detail response should be
received by the NMFS at least ten days prior to final approval of the action.
Thank you for the opportunity to provide these comments. Related questions or comments
should be directed to the attention of Mr. Ronald Sechler at our Beaufort Field Office, 101 Pivers
Island Road, Beaufort, North Carolina 28516-9722, or at [phone].
Sincerely,
r;
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/ for
Miles M. Croom
Assistant Regional Administrator
Habitat Conservation Division
cc:
COE, [e-mail]
USFWS, [e-mail]
NCDCM, [e-mail]
EPA, [e-mail]
SAFMC, [e-mail]
F/SER4, [e-mail]
F/SER47, [e-mail]
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