20221792 Ver 1_DCM Permit Denial_20230907

ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
BRAXTON DAVIS
Director
NORTH CAROLINA
Environmental Quality
August 18, 2023
CERTIFIED MAIL 7016 1370 0003 3231 9928 DEN23-02
RETURN RECEIPT REQUESTED
Electronic Delivery to: [e-mail]
Brian and Susan Shugart
1880 Woodstock Road
Clemmons, NC 27012
RE: DENIAL OF CAMA MAJOR DEVELOPMENT PERMIT
DEN 23-02
2206 East Yacht Drive
Oak Island, NC 28465
Dear Mr. and Mrs. Shugart,
After reviewing your application, which was determined to be complete on November 28, 2022,
the division elected to place the application on hold February 21, 2023, following a hold
notification from the N.C. Division of Water Resources and an objection from the N.C. Division
of Marine Fisheries (NCDMF). The division has determined that no permit may be granted for
the proposed development.
You have applied to expand an existing private pier by adding (2) 7'x 4' finger piers, (2) 14'x 4'
finger piers, a gangway to a proposed 8'x 22' floating dock, and the construction of two 14.5'x
16' boatlifts for a total of three formalized boat slips. Based on the state's review, the Division of
Coastal Management has made the following findings:
1) The proposed project would involve development within the Estuarine Waters and
Public Trust Areas of Environmental Concern as designated by the N.C. Coastal
Resources Commission.
2) The AIWW in this area is designated as a Primary Nursery Area (PNA) by the N.C.
Marine Fisheries Commission and the waters are classified as SA and are closed to
shellfishing.
D Q North Carolina Department of Environmental Quality I Division of Coastal Management
NORTH caHOHNA Morehead City Office 1 400 Commerce Avenue I Moorehead City, North Carolina 28557
nawrowm m Enmminbadi duai�h 252,808,2808

3) A General Permit was issued to you in 2021 for a fixed pier and fixed covered platform
T-head. The General Permit originally proposed a floating dock and one formalized boat
lift. The boatlift and floating dock were removed from the proposal and were not
authorized following objections from NCDMF due to shallow water depths.
4) A General Permit was applied for in 2022 for a floating dock and two boat lifts but not
processed due to NCDMF concerns regarding impacts to the PNA. At that time, you
were advised that any additional proposals involving formalized slips would require a
Major Permit review due to NCDMF's stated concerns.
5) The piling -less dual hinge I-beam gangway and floating dock would be located in -0.5'
to -1.2' Normal Low Water (NWL) and the two boatlifts would be located in -0.2' to -
0.5' NLW. You have included a design that incorporates permanent "feet" to elevate the
floating dock off the bottom during low tide events and to be consistent with U.S. Army
Corp of Engineers rule concerning structure within the AIWW setback.
6) The NCDMF objected to the proposal due to its determination that the proposal would
cause significant adverse impacts to fisheries resources from the floating dock and
boatlifts.
7) The N.C. Division of Water Resources has placed the project on hold pending the
outcome of the Division of Coastal Management's final determination.
8) Based upon the above referenced findings, the division has determined that the proposed
project is inconsistent with the following rules of the N.C. Coastal Resources
Commission, in accordance with the N.C. Coastal Area Management Act:
a) 15A NCAC 07H.0208(a)(2)(A), which states, in part, "that the location, design,
and need for development, as well as the construction activities involved shall
be consistent with the management objective of the Estuarine and Ocean System
AEC", and "shall be sited and designed to avoid significant adverse impacts
upon the productivity and biologic integrity of coastal wetlands, shellfish beds,
submerged aquatic vegetation as defined by the Marine Fisheries Commission,
and spawning and nursery areas".
Given the preceding findings, it is necessary that your request for issuance of a CAMA Major
Permit under the Coastal Area Management Act be denied. This denial is made pursuant to
N.C.G.S. § 113A-120(a)(8) which requires denial for projects inconsistent with the state
guidelines for Areas of Environmental Concern or a local land use plan.
If you wish to appeal this denial, you are entitled to a contested case hearing. The hearing will
involve appearing before an Administrative Law Judge who listens to evidence and arguments of
both parties before making a final decision on the appeal. Your request for a hearing must be in
D E Q North Carolina Department of Environmental Quality I Division of Coastal Management
NORTH caHOHNA Morehead City Office 1 400 Commerce Avenue I Moorehead City, North Carolina 28557
nawrowm m Enmminbadi duai�h 252,808,2808

the form of a written petition, complying with the requirements of § 150B of the General Statutes
of North Carolina, and must be filed with the Office of Administrative Hearings, 6714 Mail
Service Center, Raleigh, NC 27699-6714, within twenty (20) days from the date of this denial
letter. The requirements for filing a contested case can be found at
http://www.oah.state.nc.us/hearings. Although OAH cannot give legal advice, any questions
regarding this process should be directed to OAH at 6714 Mail Service Center, Raleigh, NC
27699-6714 or via telephone at 919-431-3000, including questions regarding the filing fee (if a
filing fee is required) and/or the details of the filing process.
A copy of your petition filed at OAH must be served on DEQ's agent for service of process at
the following address:
William F. Lane, General Counsel
Dept. of Environmental Quality
1601 Mail Service Center Raleigh, NC 27699-1601
Please also send a copy of the petition to the attention of Braxton Davis, Director, N.C. Division
of Coastal Management, 400 Commerce Avenue, Morehead City, NC 28557, so that your
petition may be forwarded to the attorney who will be representing the Respondent in the
contested case proceeding.
In the alternative, you may petition the N.C. Coastal Resources Commission for a variance to
undertake development that is prohibited by the Commission's rules (Note- a Commission
variance cannot be granted if your project was denied due to an inconsistency with a CAMA
Land Use Plan or other statutory provisions of the CAMA or NC D&F Law). Applying for a
variance requires that you first stipulate that the Division of Coastal Management applied the
Rules properly in issuing this denial. Applying for a variance means that you agree that the legal
restrictions are valid but request an exception to the restrictions because of hardships resulting
from unusual conditions of the property. In seeking a variance, you are requesting that the
Commission vary the rules at issue, and you must state how you believe your request meets the
four criteria found at N.C.G.S. § 113A-120.1. To apply for a variance, you must file a petition
for a variance with the Director of the Division of Coastal Management and the State Attorney
General's Office on a standard form, which must be accompanied by additional information on
the nature of the project and the reasons for requesting a variance. The variance request may be
filed at any time but must be filed a minimum of six weeks before a scheduled Commission
meeting to be eligible to be heard at that meeting.
You may either appeal the permit decision or seek a variance. These are two separate paths and
cannot be pursued simultaneously. If the appeal of the permit decision is denied, you may still
seek a variance. However, you may not first seek a variance and if that is denied attempt to
challenge the decision to deny the permit. Information about both a permit appeal in the Office
of Administrative Hearings and the Variance process may be obtained at
https:Hdeq.nc.gov/about/divisions/coastal-management/coastal-management-permits/variances-
appeals.
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North Carolina Department of Environmental Quality I Division of Coastal Management
Morehead City Office 1 400 Commerce Avenue I Moorehead City, North Carolina 28557
252,808.2808

Members of my staff are available should you desire assistance in the future. If you have any
questions concerning this matter, please contact Mr. Cameron Luck at [phone] or
[e-mail].
Sincerely,
Braxton C. Davis
Director, NC Division of Coastal Management
cc: Greg Curry, Project Manager, U.S. Army Corps of Engineers, Wilmington, NC
Richard Rogers, Director, NC Division of Water Resources, Raleigh, NC
Stephanie Goss, 401 & Buffer Permitting Branch Supervisor, NC Division of Water
Resources, Raleigh, NC
Holley Snider, Environmental Specialist, NC Division of Water Resources, NC
Kim Harding, NC Division of Marine Fisheries
North Carolina Department of Environmental Quality I Division of Coastal Management
NORTH caHOHNA Morehead City Office 1 400 Commerce Avenue I Moorehead City, North Carolina 28557
nawrowm m Enmminbadi duai�h 252,808,2808