19961054 Ver 2_Public Notice Comments_20110705 (61)

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North Carolina Department of Environment and Natural Resourc ?a$` cs + ?xatef srer,ch
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretarv
June 8, 2011
MEMORANDUM `J si ,. • _°
TO: Dave Timpy,` ? 4
U.S. Army Corps of Engineers, Wilmington District
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FROM: Rick Shiver
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;"
2. 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:
North Carolina Division of Water Quality 127 Cardinal Drive Extension
Wilmington Regional Office Wilmington, NC 28405-3845
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15A NCAC 02B.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 .05060(l)-(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;
(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-site
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.
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