20181108 Ver 4_February 2023 BA More Info Response_20230324

The purpose of this document is to submit additional information as requested by the North
Carolina Division of Water Resources regarding the ongoing processing of a Buffer Authorization
application submitted by TJ Land Development LLC on September 30, 2022. A more information
response to this application was received by the applicant on December 5, 2022 by email. A
meeting was conducted in the Washington Regional Office on January 10, 2023 between the
applicant and DWR staff to discuss a modified project proposal in response to DWR staff concerns
and to review the requested additional information. provided by the applicant to DWR. As a result
of this meeting DWR staff provided "Meeting Notes and Feedback" in a document emailed to TJ
Land Development on February 24, 2023. That document was used by the applicant as a guide in
developing this more information submittal (Attachment no. 1).
1. BUFFER TOPICS
A. Buffers/Generally
A. Buffers -Generally
1. Present and ongoing use exemption:
a. The existing buffer on Tract A, except for the maintained gravel
driveway/parking area adjacent Boat Harbor Canal, is vegetated with
maintained lawn grasses and 18, mainly loblolly pine trees, along
approximately 1,500 linear feet of shoreline. These trees are on or near the top
of bank and are subject to topple during wind events. Much of the area
delineated and approved as impervious surface in the buffer is vegetated with
lawn grasses growing through gravel and compacted soils. The majority of the
18 trees are located at the confluence of Baker Creek and Boat Harbor Canal.
The northern shoreline of Tract A experiences ongoing erosion, mainly boat
wakes created by boats entering the channelized Battalina Creek/existing boat
harbor decelerating off a plane creating large wakes and this shoreline is
actively eroding resulting in the loss of trees in this area since January 1, 2000.
There is one pine tree remaining on the northern shoreline of Battalina Creek.
The lawn grasses on the entire Tract A are maintained/mowed to the top of bank
and around to the base of the trunk of the existing trees. This regular mowing
was an activity present prior to January 1, 2000 and is ongoing at the present
time. The North Carolina Administrative Code (NCAC) 02B.07346(b)
describes existing and ongoing uses that exempt areas of the riparian buffer and
is stated as follows: "Existing and ongoing uses shall include, but not be limited
to, agriculture, buildings, industrial facilities, commercial areas, transportation
facilities, maintained lawns i.e. can be mowed without a chainsaw or bush -
hog), existing utility line maintenance corridors and on -site sanitary sewage
systems, any of which involve either specific periodic management of
vegetation or displacement of vegetation by structures or regular activity." Re-
development of existing impervious surfaces present/existing in the buffer have
not been subject to buffer requirements in the past by DWR staff. Existing
impervious surfaces including an existing building, concrete pad, parking area
and or driveway in the buffer could be replaced in the same location in the
buffer within the existing footprint. The exemption of the entire TJ Land

Development project site in 2018 (DWR Project ID 2018-1108 vl) was based
on impacts from previous use and based on existing impervious surface
coverage. Documentation and an explanation of the decision is found in the
attached email (Attachment No. 2) sent by DWR 401 staff member Mr.
Anthony Scarbrough on February 18, 2018. In this email Mr. Scarbrough
states, "At the conclusion of this meeting, DWR staff determined the site was
highly impacted from commercial traffic and from previously existing
impervious, therefore the previously filled area (outside the flagged coastal and
404 wetland areas) of the site would be considered "Exempt" from the Tar -
Pamlico Riparian Buffer Rules." I have attached a Google Earth image of the
site from February 2017 (Attachment No.3) to give DWR perspective of the
2018 site conditions prior to Anthony Scarbrough and other DWR and DEMLR
staff s site visit on February 18, 2018. The DEQ staff that conducted the site
review are listed in the email. The use of this property as a wholesale fishhouse
had ceased for nearly a decade. There were significant large areas on the 2018
project site with similar site characteristics to the current project site that were
exempted in 2018 by DWR staff. As a result, the applicant did not anticipate
the current DWR staff's concern with buffer impacts.
b. There is no "assuming" that there are areas with existing and ongoing uses
within the Tar -Pamlico Buffer. Using the word "assume" is concerning to the
applicant that DWR staff seemingly lacks a familiarity with the site and how it
is being used daily and have not reviewed any documentation submitted to
support this assertion. An exemption request that included supporting
documentation was submitted to DWR on October 24, 2022. To date the
applicant has not received any specific information from DWR staff as to
exactly where on the property an exemption to the Tar -Pamlico Buffer can be
applied. The proposed buffer in the original and modified current project site
plan "remains similarly vegetated, except for a greater density of trees will be
planted, no built upon area is proposed within the buffer other than a water
dependent dock, all existing built upon areas (existing impervious surfaces) are
to be removed, and the stormwater requirements are met and supported by the
DEMLR Stormwater Section Engineers (Attachment no. 9).
2. Table of Uses
a. The excavation of upland buffer areas for the purpose of creating mooring space are
typically referred to as an upland boat basin by other federal and state regulatory agencies
and their rules governing this type of development can be found in their respective agency
rules governing water dependent development. The North Carolina Coastal Resource
Commission in conjunction with Division of Coastal Management staff has developed
rules governing marina development in the designated 20 coastal counties. The Division
of Coastal Management and the Coastal Resource Commission's rules encourage marina
siting in upland basins. The Coastal Resource Commission's rules regulating upland basin
and canal excavation are found in 15A NCAC 7H.0208(b). The rule is the specific use
standards for the Public Trust Area, Area of Environmental Concern that regulates water

dependent uses and development in the 20 Coastal Counties. Basin and canal excavation
as well as marina development are considered by DCM as a water dependent activity. The
CRC's rules administered by DCM staff pertaining to the siting of marinas list 4 criteria in
order of preference used to evaluate a marina location found in NCAC 7H.0208(b)(5)(i-ii).
A marina in an upland basin is the most preferred by rule and staff regulating marina
development. The Tar -Pam Buffer Rule in the Table of Uses list "Water Dependent
Structures" as Allowable Upon Authorization, 15A NCAC 02B.0734(11)(tt). The Table
of Uses does not list specific water dependent structures but refers to the Environmental
Management Commission's definitions found in 15A NCAC 02B.0202. Water dependent
structures are defined in .0202(59). The definition states in part "to mean those structures
that require access or proximity to or siting within surface waters to fulfill its purpose..."
An upland boat basin requires access to and an immediate adjacent proximity to surface
waters and therefore based on this definition, falls within the definition of a water
dependent structure found in 15A NCAC 02B.0202(59).
To excavate an upland boat basin requires modification of the existing shoreline and
associated existing buffers. It is not practical to dig an upland basin without impacting the
existing buffer. The largest area of uplands to be excavated to create a basin for this project
proposal was chosen due to it's proximity to and alignment with the channel flow within
the existing excavated channel for the purpose of flushing of the basin. The further
widening of Baker Creek or Boat Harbor Canal to meet the proposed number of slips would
create a right-angled basin to the main channel flow and would create potential problems
with flushing of the proposed basin. The proposed canal widening in Baker Creek and
Boat Harbor Canal is limited to what is necessary to comply with the Settlement Agreement
(Attachment no. 4) between the applicant and an adjacent riparian property owner. It is
not practical to design an open water marina in Battalina Creek without digging an upland
basin due to impacts to navigation, a concern raised by an adjacent riparian business owner
and the main concern of the settlement agreement. The elimination or reduction of upland
excavation along the northern shoreline in Battalina Creek would reduce the number of
proposed slips by as much as 16 slips, reducing the number of possible slips by nearly half.
3. Site plan/quantification of buffer impacts
The existing pre -impact buffer lines (Zonel and 2) along with the specific existing area
square footage existing in each Zone (Attachment no.5, sheet 1). The post -impact buffer
Zones I and 2 are shown with on the plan as well with the same corresponding information.
Sheet 2 of Attachment 5 has the proposed planting plan for the buffer re-establishment
plan.
B. Buffers -Tract A
1. Avoidance and minimization
a. As a measure of avoidance and minimization, the current project site was chosen
over other potential sites, within the Town of Belhaven and in proximity to the
Atlantic Intercoastal Waterway, because this site was already heavily impacted
from the excavation of Battalina Creek and adjacent Coastal Wetlands marsh to
create uplands and a navigable channel. Impacts to fishery and wildlife habitat
associated with these past excavation activities coupled with recent past permit

decisions to authorize excavation of access channels in Battalina Creek near the
northern shoreline of Tract A led to the purchase of this property by the applicant
and current project design. Major CAMA/Dredge and Fill permit no. 115-18
(DWR Project no. 2018-1108vl) was issued on October 8, 2018 authorized
excavation of the marked channel in Batalina Creek to the proposed project site and
beyond to a final depth of minus 6.0' below the normal water level (NWL). Major
CAMA/Dredge and Fill permit no. 35-22 (DWR Project no. 2021-1814) issued on
April 4, 2022 authorized excavation of a channel from the Sargent Canal to the
channel authorized by Major CAMA/Dredge and Fill permit no. 115-18. These
permits were issued based on "no significant adverse impact" comments/concerns
raised by other regulatory and review agencies, most importantly the Fishery
Habitat Specialist with the NC Division of Marine Fisheries. Battalina Creek is
designated by the NC Marine Fisheries Commission as a Coastal Waterbody and
as a Primary Nursery Area and the Fishery Habitat Specialist is the recognized
habitat expert in Coastal Waterbodies in this region. The NC DMF Habitat
Specialist did not raise any significant adverse impact concerns over impacts to
fishery habitat in the original basin design for this project, however NC DWR is
still concerned with the proposed excavation in Battalina Creek and adjacent
uplands. His official written comments to DCM regarding the TJ Land
Development LLC Major CAMA/Dredge and Fill application are attached
(Attachment no. 6). To avoid and minimize and address NC DWR concerns with
the proposed excavation in Battalina Creek the area excavated in Battalina Creek
has been reduced by 50%. This reduction was accomplished by eliminating the
excavation between the Sargent Canal channel to the proposed fuel dock in the
basin on the northern shoreline of Tract A (Attachment no. 5, sheet 1). The existing
vegetation in the buffer along the northern shoreline of Battalina Creek is limited
to regularly mowed lawn grasses. An activity that has been ongoing since January
1, 2000. There was some loblolly pines growing on the top of bank in this area.
Erosion exposing the tap root has resulted to these trees toppling during northly
wind events. The re -planting of the buffer vegetation along the shoreline of Tract
A including the northern shoreline will include two different species of hardwood
trees at a density off 68 trees per acre greater than the 11 trees per acre that exist
today and prior to January 1, 2000. The purpose and need for a transient marina in
the town of Belhaven was recently supported by the US Fish and Wilidlife "Boating
Infrastructure Grant" (BIG Grant) program. TJ Land Development LLC was
notified on March 9, 2023 by Ms. Vicky Pohoreskey, Federal Aid Coordinator with
the NC Division of Marine Fisheries, who administers the BIG grant program in
North Carolina, that a Tier II Level BIG Grant had been approved for funding to TJ
Land Development LLC. The amount requested was $900,000 (Attachment 7). A
Tier II grant is a competitive annual grant process in which potential projects
compete at a national level.
Side dock
a-b.
Another avoidance and minimization measure is to limit the "side dock" width to 6'
within the Tar -Pam Buffer. There is an 8' wide side dock (Dock B) proposed in the
basin created by excavation of the Battalina Creek shoreline. Dock A in the buffer is

an open, slated, 6' wide dock and is purchased prefabricated out of concrete.
Underneath (See Attachment no.8) the side dock will be a feature to encourage
infiltration of stormwater runoff that reaches the dock area from adjacent uplands. This
infiltration feature will be constructed by excavating a trench behind the bulkhead and
in the footprint of the dock approximately 1' deep. The trench will be lined with a
geotextile fabric then backfilled with washed stone.
2. Reestablishment of a 50' buffer
a.
To minimize disturbance, preserve aquatic life and habitat and protect water quality
this project proposes to maintain and reestablish a better functioning 50' wide vegetated
buffer around the newly excavated basin. Currently there exist 14,314 ftz of impervious
in Zone 1 and 9,983 ftz in Zone 2. Stormwater runoff impacting the adjacent surface
waters is greatest from these adjacent impervious surfaces with a buffer vegetated by
lawn grasses only. The delineation of these impervious surfaces has been approved by
the Division of Energy, Mining and Land Resources Stormwater Section staff who
issued a Redevelopment Exclusion from a Coastal Stormwater permit based on the
original project design submitted on June 28, 2022 (Attachment no.9). The letter from
the DEMLR Stormwater staff states in part "the proposed stormwater control measures
provide equal or better protection of surface waters than the existing stormwater control
measures." The current project proposal eliminates all impervious surfaces/built upon
areas within the Tar -Pam buffer. All remaining impervious surfaces post excavation
will be undercut to remove gravel and asphalt millings. Compacted soils in these areas
will be ripped and disked to loosen soil compaction. Where needed topsoil will be
trucked in to replenish and level depressions left after these activities. The topography
of the site will remain flat absent of any areas with concentrated stormwater
conveyances. Existing woody vegetation on Tract A is limited to certain areas along
Baker Creek and Boat Harbor Canal and the widening will remove this woody
vegetation. The excavation of the project site shoreline will result in the removal 18
pine trees along a total of 1, 500 linear feet of shoreline or 11 trees per acre within the
existing buffer. The disturbed/excavated areas will be re -vegetated in an "in kind"
manner (pre -project site conditions with additional woody vegetation) with lawn
grasses and with a denser stand of woody vegetation to include native hardwood trees,
dogwood (Cornus orida) and live oak ( uercus virginiana) The live oaks will be
planted in line 25' landward of the bulkhead spaced 20' apart and the dogwoods will
be planted 40' off the bulkhead spaced 20' apart. The proposed plantings will result in
81 trees per acre, far exceeding the 11 trees per acre that exist on the site today. The
spacing of the trees is due in part to avoid interaction of the roots with the bulkhead tie
back system. Proposed tree plantings will occur during the dormant period for tree
growth in this region. The first fall/winter after project completion on Tract A, bare
root seedlings as well as 25-gallon tree saplings will be planted and maintained with a
3' diameter ring of mulch 4" to 6" thick. The mulch ring will be maintained as needed
to reduce and prevent competition from grass and weeds and to prevent interactions
with mowing equipment. The survival of these saplings will be monitored annually
and replaced as needed. An annual report including photographs of the tree plantings

will be submitted to DWR staff in the Washington Regional Office in April of each
year for 5 years following planting.
4. Perpendicular pedestrian access to side dock
a.
Also, as another avoidance and minimization measure there will be no pedestrian
boardwalk(s) built through the buffer to the proposed side dock. There will be no
vehicular traffic other than mowing equipment to maintain the lawn grasses.
C. Buffers along Sargent Canal
1. Although the Sargent Canal is not subject to the Tar -Pamlico Buffer Rule, the planting
of live oaks is proposed with similar spacing as proposed on Tract A (Attachment no.
5 sheet 2).