20040337 Ver 3_CAMA Application_20170118

Jim Gregson
NC DWR, 401 & Buffer Permitting Unit
1617 Mail Service Center
Raleigh, NC 27699-1617
Mr. Gregson,
a [ c�WWI
7ANJN
82017
Enclosed is a revised dredging permit request for 401 water quality certification at Waters Edge
Subdivision in Pender County (DWR #04-0337 v2). Your agency denied this permit on December 14,
2015. We have since received a variance from the Coastal Resources Commission for the project. The
variance is included in the revised application. Application fee is also enclosed.
Please feel free to contact me with any questions. Thank you.
�oo`�d33�
v3
Mic el J. Mac
President, Waters Edge HOA
573-808-0288
[e-mail]

RCM MP4
APPLICA11ON for
Malar Development Permit
(last revised 12127/06)
North Carolina DIVISION OF COASTAL MANAGEMENT
1. Primary Applicant/ Landowner Information
Business Name
Project Name (if applicable)
Waters Edge Homeowners Association
Boat dock dredging
Applicant 1: First Name
MI
Last Name
Michael
J
Mac
Applicant 2: First Name
MI
Last Name
Todd
Knierim
Skeen
If additional applicants, please attach an additional page(s) with names listed. J 8 20
Mailing Address
Last Name
PO Box
City e
2108 Capital Drive, Suite 102
PO Box
City
p
Wilmington FF P OU
ZIP
Country
Phone No.
FAX No.
28405
USA
910 - 799 - 9779 ext.
910 - 799 - 9981
Street Address (d different from above)
28443
City
State
ZIP
Email
FAX No.
cb[[e-mail]
2. Agent/Contractor Information
Business Name
Maritech Llc
Agent/ Contractor 1: First Name
MI
Last Name
Adam
C.
Knierim
Agent/ Contractor 2: First Name
MI
Last Name
Mailing Address
PO Box
City
State
108 Circle Dr.
Hampstead
NC
ZIP
Phone No. 1
Phone No. 2
28443
910 - 270 -
4058 ext.
910 - 297 - 7710 ext.
FAX No.
Contractor #
910 270 4058
N/A
Street Address (if different from above)
City
State
ZIP
Email
[e-mail]
<Form continues on back>
1

Form DCM MP -1 (Page 2 of 4)
APPLICATION for
Major Development Permit
3. Project Location
County (can be multiple)
Street Address
State Rd. #
Pender
102
Great Oak Dr.
Subdivision Name
City
State
Zip
Waters Edge at Deefield
Hampstead
NC
28443 -
Phone No.
Lot No.(s) (d many, attach additional page with list)
573- - 808 - 0288 ext.
Between lot 2 and lot 3, 1 1 ,
a. In which NC river basin is the project located?
b. Name of body of water nearest to proposed project
New
AIWW
c. Is the water body identified in (b) above, natural or manmade?
d. Name the closest major water body to the proposed project site.
❑Natural ®Manmade ❑Unknown
AIWW
e. Is proposed work within city limits or planning jurisdiction?
f. If applicable, list the planning jurisdiction or city limit the proposed
®Yes []No
work falls within.
Pander Co.
4. Site Description
a. Total length of shoreline on the tract (ft.)
b. Size of entire tract (sq.ft.)
30
easement is 30 x200, 6000 sq ft
c. Size of individual lot(s)
d. Approximate elevation of tract above NHW (normal high water) or
NWL (normal water level)
(If many lot sizes, please attach additional page with a list)
2.75 ft ®NHW or ❑NWL
e. Vegetation on tract
No vegetation on easement, it is cleared for vehicle access.
f. Man-made features and uses now on tract
Existing Access Pier, Gazebo and floating docks for 9 boat slips
g. Identify and describe the existing land uses adjacent to the proposed project site.
Existing floating facility is between lot 2 and 3 of Waters Edge Subvidivsion, Facility is on a designated area for Community
docks and recreation. Properties on each side of the easement are homeowner lots and part of the Waters Edge
Community.
h. How does local government zone the tract?
i. Is the proposed project consistent with the applicable zoning?
single residents and recreation
(Attach zoning compliance certificate, if applicable)
®Yes ❑No [INA
j. Is the proposed activity part of an urban waterfront redevelopment proposal? ❑Yes ®No
k. Hasa professional archaeological assessment been done for the tract? If yes, attach a copy. []Yes []No ®NA
If yes, by whom?
I. Is the proposed project located in a National Registered Historic District or does it involve a []Yes []No ®NA
National Register listed or eligible property?
<Form continues on next page>
252-808-2808 . 1-888-4RCOAST .. www.nccoastaimanagement.net

Form DCM MP -1 (Page 3 of 4)
APPLICATION for
Major Development Permit
m. (i) Are there wetlands on the site? []Yes ®No
(ii) Are there coastal wetlands on the site? ❑Yes ®No
(iii) If yes to either (i) or (ii) above, has a delineation been conducted? ❑Yes []No
(Attach documentation, if available)
n. Describe existing wastewater treatment facilities.
Community sewage (septic tankstfields) for homes, no wastewater treatment for small boats
o. Describe existing drinking water supply source.
Community Water provided by Pender County
p. Describe existing storm water management or treatment systems.
The community has retention ditches along the roadway and between lots 6&7, 10&11, 15&16
5. Activities and Impacts
a. Will the project be for commercial, public, or private use? ❑Commercial ❑Public/Govemment
®Private/Community
b. Give a brief description of purpose, use, and daily operations of the project when complete.
Dredging under the existing dock/marina facility to restore historic water depths. This will enable safe boat use, and remove
stress from floating dock which rests on the bottom during low tide.
c. Describe the proposed construction methodology, types of construction equipment to be used during construction, the number of each type
of equipment and where it is to be stored.
Dredging operations will be performed utilizing bucket and barge methodology. A barge and pushboat will be used for
transporting dredged material. Material will be disposed of in state approved site.
d. List all development activities you propose.
New excavation to restore original depth at location.
e. Are the proposed activities maintenance of an existing project, new work, or both? New
f. What is the approximate total disturbed land area resulting from the proposed project? None ❑Sq.Ft or []Acres
g. Will the proposed project encroach on any public easement, public accessway or other area ❑Yes ®No [INA
that the public has established use of?
h. Describe location and type of existing and proposed discharges to waters of the state.
Other than short term discharge associated with the dredging activity, no discharges are proposed
i. Will wastewater or stormwater be discharged into a wetland? []Yes ®No []NA
If yes, will this discharged water be of the same salinity as the receiving water? []Yes []No []NA
j. Is there any mitigation proposed? ❑Yes ®No [INA
If yes, attach a mitigation proposal.
<Form continues on back>
252-808-2808 .. 1-888-4RCOAST .. www.nccoastaimanagement.net

Form DCM MP -1 (Page 4 of 4)
APPLICATION for
Major Development Permit
6 Addidonallnformadon
In addition to this completed application form, (MP -1) the following items below, if applicable, must be submitted in order for the application
package to be complete. Items (a) — (t) are always applicable to any major development appllcaMm. Please consult the application
instruction booklet on how to propedy prepare the required items below.
a. A project narrative.
b. An accurate, dated work plat (including plan view and cross-sectional drawings) drawn to scale. Please give the present status of the
proposed project. Is any portion already complete? If previously authorized work, dearly indicate on maps, plats, drawings to distinguish
between work completed and proposed.
c. A site or location map that is sufficiently detailed to guide agency personnel unfamiliar with the area to the site.
d. A copy of the deed (with state application only) or other instrument under which the applicant claims title to the affected properties.
e. The appropriate application fee. Check or money order made payable to DENR.
f. A list of the names and complete addresses of the adjacent waterfront (riparian) landowners and signed return receipts as proof that such
owners have received a copy of the application and plats by certified mail. Such landowners must be advised that they have 30 days in
which to submit comments on the proposed project to the Division of Coastal Management.
Name Hollis Batson Phone No. 910-27040866
Address 110 Captains Cove
Name Michael Norris Phone No.
Address 250 Palm coast Hwy. NE, Ste 607 PMB 306, Palm Coast, FL, 32137
Name Phone No.
Address
g. A list of previous state or federal permits issued for work on the project tract. Include permit numbers, permittee, and issuing dates.
68-03, Jimmy's Island LLC, May 2004
h. Signed consultant or agent authorization form, if applicable.
i. Wetland delineation, if necessary.
j. A signed AEC hazard notice for projects in oceanfront and inlet areas. (Must be signed by property owner)
k. A statement of compliance with the N.C. Environmental Policy Act (N.C.G.S. 113A 1-10), if necessary. If the project involves expenditure
of public funds or use of public lands, attach a statement documenting compliance with the North Carolina Environmental Policy Act.
1 7, Certification and Permission to Enter on Land
I understand that any permit issued in response to this application will allow only the development described in the application.
The project will be subject to the conditions and restrictions contained in the permit.
I certify that I am authorized to grant, and do in fact grant permission to representatives of state and federal review agencies to
enter on the aforementioned lands in connection with evaluating information related to this permit application and follow-up
monitoring of the project.
I further cedl that th information provided in this application is truthful to the best ofmj knowledge.
Date o� _ Print Name C -M Q� / "I
Signature
Please indicate application attachments pertaining to your proposed project.
®DCM MP -2 Excavation and Fill Information ❑DCM MP -5 Bridges and Culverts
❑DCM MP -3 Upland Development
❑DCM MP -4 Structures Information
252-808-2808 .. 1-888-4RCOAST .. www.nccoastaimanagement.net

6 a. Project Narrative
The permit is being requested to dredge two areas used for boat docks along the AIWW by the
Waters Edge Homeowners Association. The neighborhood owns a total of 18 slips, 9 along the
AIWW and 9 along Mill Creek. No dredging is needed or proposed in Mill Creek. This application
is only for the 9 slips along the AIWW. A previous application for this purpose was denied in
2015 (DWR# 04-0337 v2) due to presence of SAV at site of proposed dredging. We recently
obtained a variance from the Coastal Resources Commission (CRC -VR -16-10; see attached file)
which states in part:
Petitioner is authorized to dredge as requested in its application to a maximum depth of
-3.92 feet NLW based on the information provided in Stipulated Fact No. 30 as to the
depth around piers 1-9 in 2003. Stipulated Fact 30 reads in part: According to a March
3, 2003 survey submitted with the 2003 CAMA Permit application, the water depths in
slips 1-9 ranged from -1.91 feet to -3.92 feet relative to NGVD 1929. No calculations
were provided to convert these depths relative to normal low water or normal high
water. On Form DCM-MP-4 in the 2004 application for a Major Modification of the
Permit, the applicant indicated that the water depth at the waterward end of piers was -
4 feet ML W. A copy of the 2004 Major Mod Application is a Stipulated Exhibit.
Given the CRC variance granted 11/30/17 we are re -submitting our applications to DWR and
the Army Corps of Engineers. We hope permits can issued without the need for any further
variance proceedings, as we are looking to dredge as soon as possible. The goal is to restore
the original depth of water at the docks when the marina area was originally built (see figure
1.), under permit 68-03. The marina was built in 2004 and no dredging has occurred since its
construction. Two separate boat dock areas are to be dredged (see figure 2.), one with 4 boat
slips (southernmost dock, photo 1) and one with 5 boat slips (northernmost photo 2). The
docks are attached to land through a pier structure and meet the shoreline at Community
easement property. Approximately 3 ft. of material needs to be removed to restore the
original depth of -3.92 feet. Approximately 971 cu. yds. of material will need to be removed,
555 from the northern dock, 416 from the southern dock, and placed in the state disposal site
at Topsail Creek.
Since the area has received depositional sediments creating shallower water depths,
submerged aquatic vegetation (SAV) has colonized the northernmost end of the marina facility.
We understand the value of SAV to fishery resources on the coast. Some of this SAV would be
destroyed in the dredging process. However, we believe the presence of the dock contributed
to the establishment and sustainability of the SAV. The area is highly exposed to the

predominant southerly winds and our floating docks buffer wind and wave action from that
direction. The map (attached) developed by Division of Fisheries indicates that SAV is only
established on the north side (leeward) of our dock. Despite the presence of SAV in our marina
since at least 2008, there is no SAV established directly south of our marina, according to
Division of Fisheries. We believe wind and wave action prevents further migration of the SAV
and that the removal of our dock could likely result in the loss of all the SAV in the area of our
marina.
6b. Status of Project
The project has not been started.

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NOTES:
1. THIS MAP WAS NOT PREPARED FOR RECORDATION,
CONVEYANCES, OR SALES PURPOSES.
2. PROPOSED DOCK FACILITY DOES NOT EXCEED
1/4 OF THE WATER BODY WIDTH.
3. -,= ELEVATIONS ARE RELATIVE TO NCVD '29, --
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SCALE: 7'= 110' MARCH 3. 2003
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FILED
06 OCT 25 PH 2. 16
J"YCE M. SWICEGOOD
7EGISTEP� OF DEEDS
FIN 0 32 o _
-0� NT.V av_
Deed
Excise Tax
Parcel Identifier No.
1.1t3079PG047
Recording time, book and page
Ri-roo
Re�3t h?. SWt V�.fr
pe4d� co�� �°�
ND
No certific'
a on or opinion on title is expressed by the preparer of this deed except as may appear from the preparer's
signed r opinion.
Prepared William O.J. Lynch, Hogue, Hill, Jones, Nash & Lynch, L.L.P.
O. Drawer 2178, Wilmington, NC 28402
Grantee mailing address:
Returned to:
STATE OF NORTH CAROLINA
COUNTY OF PENDER
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS that UNIVERSITY GROUP, INC.,
"GRANTOR", in consideration of TEN AND N0/100 ($10.00) DOLLARS and other good and
valuable consideration, paid to GRANTOR by WATERS EDGE HOA. INC, "GRANT-
EE", the receipt of which is hereby acknowledged, by these presents, does give, grant, bargain,
sell and convey unto the said GRANTEE, and GRANTEE'S heirs, successors, and assigns,
forever, in fee simple, all that certain lot or parcel of land located in the County of Ponder, State
of North Carolina, and more particularly described as follows:
All of the real property within Waters Edge at Deerfield, but excluding from this conveyance Lots
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, as shown on map of same recorded in Map
Book 37, Pages 133-134, Pender County Registry, reference to which is hereby made for a more particular
description.
TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and
appurtenances thereto belonging, to the said GRANTEE and said GRANTEE's heirs, successors,
and assigns_ fnrnvPr in fPP eimnlw ar%A t1,A !YT? AN"nb .:+..,u :+-

IM79PG048
stated, and that GRANTOR hereby will warrant and defend the title against the lawful claims of
all persons whomsoever, except for the exceptions herein stated.
Title to the property is subject to the following exceptions:
The provisions of all applicable zoning and land use ordinances, statutes and regulations;
current year ad valorem taxes;
Applicable utility easements of record;
Declaration of Covenants, Conditions and Restrictions for Waters Edge, recorded in
Book 2426, Pages 248-278, Pender County Registry, as amended; and
There is excluded from the warranty of this deed any portion of the above-described real
property which lies below the mean high water line of any waters that ebb and flow with
the tides.
The designation GRANTOR and GRANTEE as used herein shall include said parties,
their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine or
neuter as required by context.
IN WITNESS WHEREOF, the GRANTOR has hereunto set his hand and seal, or if
corporate, has caused this instrument to be signed in its corporate name by its duly authorized
officer, this the t24 day of October, 2006.
UNIVERSITY GROUP, INC.
Vlcs Presid
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
thatI, IMCIA. - SM4yWA a Notary Public of the State and County aforesaid, certify
• ✓.'29.0 personally came before me this day and acknowledged that
he is the 114,elimsident of UNIVERSITY GROUP, INC., a corporation, and that he, as
V;C-e, President, being authorized to do so, executed the foregoing on behalf of the corporation.
WITNESS my hand and official seal this the j& day of �C ,EX , 2006.
My commission expires: •,2 t,po [/ Notary Public
(SEAL)
§ 47-18.3 and § 47-41.01 VICTORIA M. STRACHAN
Notary Public
New Hanover County, NC

Form DCM MP -2
EXCAVATION and FILL
(Except for bridges and culverts)
Attach this form to Joint Application for CAMA Major Permit, Form DCM MP -1. Be sure to complete all other sections of the Joint
Application that relate to this proposed project. Please include all supplemental information.
Describe below the purpose of proposed excavation and/or fill activities. All values should be given in feet.
1. EXCAVATION [3 This section not applicable
a. Amount of material to be excavated from below NHW or NWL in b. Type of material to be excavated.
cubic yards. sand, muddy sand
971
c. (i) Does the area to be excavated include coastal wetlands/marsh
(CW), submerged aquatic vegetation (SAV), shell bottom (SB),
or other wetlands (WL)? If any boxes are checked, provide the
number of square feet affected.
❑CW ®SAV ❑SB
OWL ❑None
(ii) Describe the purpose of the excavation in these areas:
Restore depth under existing boat marina
d. High -ground excavation in cubic yards.
12. DISPOSAL OF EXCAVATED MATERIAL ❑ This section not applicable
a. Location of disposal area.
USACE DA 203
C. (i) Do you claim title to disposal area?
❑Yes ®No [INA
(ii) If no, attach a letter granting permission from the owner.
b. Dimensions of disposal area.
approx 300x300
d. (i) Will a disposal area be available for future maintenance?
®Yes ❑No ❑NA
(ii) If yes, where?
USACEDA203
e. (i) Does the disposal area include any coastal wetlands/marsh f. (i) Does the disposal include any area in the water?
(CW), submerged aquatic vegetation (SAV), shell bottom (SB), ❑Yes ®No [INA
or other wetlands (WL)? If any boxes are checked, provide the
number of square feet affected. (ii) If yes, how much water area is affected?
❑CW ❑SAV OSB
OWL ®None
(ii) Describe the purpose of disposal in these areas:
252-808-2808 :: 1-888-4RCOAST :: www.nccoastalmanagement.net revised: 12/26/06
Access
Other
Channel
Canal
Boat Basin
Boat Ramp
Rock Groin
Rock
(excluding
(NLW or
Breakwater
shoreline
NWL)
stabilization
Length
Width
Avg. Existing
1.0
1.0
NA
NA
Depth
Final Project
-3.92
-3.92
NA
NA
Depth
1. EXCAVATION [3 This section not applicable
a. Amount of material to be excavated from below NHW or NWL in b. Type of material to be excavated.
cubic yards. sand, muddy sand
971
c. (i) Does the area to be excavated include coastal wetlands/marsh
(CW), submerged aquatic vegetation (SAV), shell bottom (SB),
or other wetlands (WL)? If any boxes are checked, provide the
number of square feet affected.
❑CW ®SAV ❑SB
OWL ❑None
(ii) Describe the purpose of the excavation in these areas:
Restore depth under existing boat marina
d. High -ground excavation in cubic yards.
12. DISPOSAL OF EXCAVATED MATERIAL ❑ This section not applicable
a. Location of disposal area.
USACE DA 203
C. (i) Do you claim title to disposal area?
❑Yes ®No [INA
(ii) If no, attach a letter granting permission from the owner.
b. Dimensions of disposal area.
approx 300x300
d. (i) Will a disposal area be available for future maintenance?
®Yes ❑No ❑NA
(ii) If yes, where?
USACEDA203
e. (i) Does the disposal area include any coastal wetlands/marsh f. (i) Does the disposal include any area in the water?
(CW), submerged aquatic vegetation (SAV), shell bottom (SB), ❑Yes ®No [INA
or other wetlands (WL)? If any boxes are checked, provide the
number of square feet affected. (ii) If yes, how much water area is affected?
❑CW ❑SAV OSB
OWL ®None
(ii) Describe the purpose of disposal in these areas:
252-808-2808 :: 1-888-4RCOAST :: www.nccoastalmanagement.net revised: 12/26/06

Form DC"M MP -2 (Excavation and Fill, Page 2 of 2)
3. SHORELINE STABILIZATION ®This section not applicable
(If development is a wood groin, use MP -4 — Structures)
a. Type of shoreline stabilization:
[]Bulkhead ❑Riprap ❑Breakwater/Sill []Other:
c. Average distance watenward of NHW or NWL:
e. Type of stabilization material:
g. Number of square feet of fill to be placed below water level.
Bulkhead backfill Riprap
Breakwater/Sill Other
i. Source of fill material.
b. Length:
Width:
d. Maximum distance waterward of NHW or NWL:
f. (i) Has there been shoreline erosion during preceding 12
months?
❑Yes ❑No ❑NA
(ii) If yes, state amount of erosion and source of erosion amount
information.
h. Type of fill material.
4. OTHER FILL ACTIVITIES ®This section not applicable
(Excluding Shoreline Stabilization)
a. (i) Will fill material be brouqht to the site? []Yes ❑No ❑NA b. (i) Will fill material be placed in coastal wetlands/marsh (CW),
If yes,
(ii) Amount of material to be placed in the water
(iii) Dimensions of fill area
(iv) Purpose of fill
submerged aquatic vegetation (SAV), shell bottom (SB), or
other wetlands (WL)? If any boxes are checked, provide the
number of square feet affected.
❑CW ❑SAV ❑SB
OWL ❑None
(ii) Describe the purpose of the fill in these areas:
& GENERAL
a. How will excavated or fill material be kept on site and erosion b. What type of construction equipment will be used (e.g., dragline,
controlled? backhoe, or hydraulic dredge)?
standard disposal site practices bucket and barge
c. (i) Will navigational aids be required as a result of the project?
❑Yes ®No ❑NA
(ii) If yes, explain what type and how they will be implemented.
Date
J,J F� i E RS
Project Name
d. (i) Will wetlands be crossed in transporting equipment to project
site? []Yes ®No [:INA
(ii) If yes, explain steps that will be taken to avoid or minimize
environmental impacts.
M
252-808-2808 :: 1-888-4RCOAST :: www.nccoastaimanaTement.net revised: 12/26/06

From: Adam Knierim <_�damknierin�(«<�nlail.c�>>i>>
Date: Tue, May 3, 2016 at 7:04 AM
Subject: Fwd: Waters Edge Project
To: Michael Mac <mikcimac 1 1 (c -i' g1)1ai1.c0,11>
The email below will suffice for permitting purposes.
---------- Forwarded message ----------
From: bushardt <hL1S1KU dt C hal l �uuth. net>
Date: Mon, Apr 4, 2016 at 11:16 AM
Subject: Re: Waters Edge Project
To: Adam Knierim <a�ia�ianrlicrini<<maii.c�n»
PIE
Adam,
It is permissible to use the spoil island for the projects you mentioned in your email.
Thank You,
Paula Bushardt
President
NENHC
On Wednesday, March 30, 2016 1:24 PM, Adam Knierim<a ar, n'arlm:�g,mai!.carn> wrote:
Paula,
Hope all is well! I just left a voicemail explaining the Waters Edge Project. I am
wondering if the Conservancy will grant permission to place approximately 900cy of
material derived from the project.
also have a small project that we did back in 2008 for the Carlson's. The project
consists of placing approximately 300cy of sandy material on the island. As usual, an
emailed response will suffice for the permit . Please give me a call if you have any
questions or concerns. Thanks again and talk to you soon.
Adam C. Knierim, M.S.
President/Coastal Geologist
Maritech, LLC
108 Circle Drive
Hampstead, NC 28443
office 910.270.4058

field 910.297.7710
fax [phone]
Adam C. Knierim, M.S.
President/Coastal Geologist
Maritech, LLC
108 Circle Drive
Hampstead, NC 28443
office Q I O. ' 70.4( )
field l) 1 O.2 1)7.7 71 O
fax 9i 1 O. 7 0.4 );, -

e.aSUt(°
STATE OF NORTH CAROLINA
DEPARTMFNI' OF JUSTICE
ROY COOPER. 11.0. Box 629 Rwi.y,ro: Mmy L. I.ucnssr
ATTORNEY GENERAL RAIXI i, NC 27602 )✓m'1110NMEN"rnc. DIVISION
'1 - - [phone]
Fne: [phone]
mlucasse @nedoj.gov
December 22, 2016
Christ Blake, Registered Agent Certified Mail/Return Receipt Requested and
Water's Edge Homeowners electronically [e-mail]
Association, Inc. and
2108 Capital Drive, Suite 102 mikeimacll cr,gnruil.cam
Wilmington, NC 28405
Re: Variance Request for Coastal Area Management Act (CAMA) Permit,
CRC -VR -16-10
Dear Mr. Blake:
At its November 30, 2016 meeting, the Coastal Resources Commission granted Petitioner
Water's Edge Homeowners Association, Inc.'s request for a variance. Attached is a copy of the
final agency decision signed by the Chair of the Coastal Resources Commission. Prior to
undertaking the development for which a variance was sought, you must first obtain all
necessary permits and/or variances including a CAMA permit from the local permitting authority
or the Division of Coastal Management.
If for some reason you do not agree to the variance as issued, you have the right to appeal
the Coastal Resources Commission's decision by filing a petition for judicial review in the
superior court as provided in N.C.G.S. § 1.50B-45 within thirty days after receiving the final
agency decision. A copy of the judicial review petition must be served on the Coastal Resources
Commission's agent for service of process at the following address:
General Counsel
Dept. of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
If you choose to file a petition for judicial review, I request that you also serve a copy of
the petition for judicial review on me at the address listed in the letterhead. If you have any
questions, please feel free to contact me.
Sincerely,
,4 / A �
L. Lucasse
Special Deputy Attorney General and
Counsel for the Coastal Resources Commission

Christ Blake, Registered Agent
December22, 2016
Page 2
cc: Frank D. Gorham, III., electronically
Stephen D. Coggins, electronically
Christine A. Goebel, Esq. electronically
Braxton C. Davis, electronically
Mike Lopazanski, electronically
Angela Willis, electronically

STATE OF NORTH CAROLINA ) BEFORE THE NORTH CAROLINA
COASTAL RESOURCES COMMISSION
COUNTY OF PENDER ) CRC -VR -16-10
IN THE MATTER OF: )
PETITION FOR VARIANCE ) FINAL AGENCY DECISION
BY WATERS EDGE HOMEOWNERS )
ASSOCIATION, INC. )
This matter was heard on oral arguments and stipulated facts at the regularly scheduled
meeting of the North Carolina Coastal Resources Commission (hereinafter Commission) on
November 30, 2016 in Atlantic Beach, North Carolina pursuant to N.C. Gen. Stat. § I I3A-120.1
and 15A NCAC 7J .0700, et seg. Assistant General Counsel Christine A. Goebel, Esq. appeared
for the Department of Environmental Quality, Division of Coastal Management (DCM). Stephen
D. Coggins, Esq. appeared on behalf of Petitioner Waters Edge Homeowners Association, Inc.
Upon consideration of the record documents and the arguments of the parties, the
Commission adopts the following:
STIPULATED FACTS
1. Petitioner Waters Edge HOA ("Petitioner" or "HOA") is a North Carolina non-
profit corporation. Based on records filed with the Secretary of State, Water's Edge HOA, Inc.
was incorporated in 2004. Petitioner's Registered Agent is Chris Blake. Petitioner is represented
in this variance petition by attorney Stephen D. Coggins, Esq.
2. HOA is a residential planned community subdivision formed pursuant to the
North Carolina Planned Community Act (N.C.G.S. § 47F et seq.). The Waters Edge subdivision
is located in Pender County, North Carolina.

3. Petitioner owns common -area property in the Waters Edge subdivision including
two piers containing nine boat slips and a six-foot wide accessway to the piers (the "Site"). The
right to use each of the nine slips has been assigned through the restrictive covenants to specific
lots owners who are Class A Boating Members in the subdivision. The developer chose to
develop two community piers instead of constructing piers on each individual lot. The restrictive
covenants prohibit the construction of piers on individual lots. (See pp. 20-21 of the Restrictive
Covenants). A copy of the restrictive covenants and amendments was provided to the
Commission as attachments to the DCM Staff Recommendation and are recorded at Book 2425,
Page 250 of the Pender County Registry with amendments recorded at Book 2442, Page 157,
Book 2523, Page 164, Book 3079, Page 45 and Book 4190, Page 232.
4. The Site is bounded on the east by the Atlantic Intracoastal Waterway ("AIWW"),
on the north and south by residential lots 2 and 3, and on the west by the intersection of Great
Oak Drive and Water's Edge Drive. The Site is located approximately 665 feet to the north of the
entrance to Mill Creek from the AIWW. There is an AIWW channel marker located between the
two piers at issue. The Site is located approximately 7000 feet southwest of the entrance to
Topsail Creek and an additional 6500 feet to the throat of New Topsail Inlet.
5. The Site is located adjacent to Topsail Sound, which at this location is part of the
AIWW. At this location, the waters of Topsail Sound are classified as SA-ORW (Outstanding
Resource Waters) by the Environmental Management Commission ("EMC") and are open to the
harvest of shellfish. While the waters of the AIWW at the adjacent to the Site are not designated
as nursery area, the waters of Mill Creek are designated as a Permanent Secondary Nursery Area
by the Marine Fisheries Commission.
2

6. Existing development at the Waters Edge subdivision includes a bulkhead along
the shoreline, upland subdivision infrastructure and residences, and 18 boat slips on three piers—
one pier with nine slips on Mill Creek and two piers (with a total of nine -slips) on the AIWW.
The pier on Mill Creek is not included in this variance request.
Original CAMA Maior Permit and Modification
7. On May 27, 2003, DCM issued a CAMA Permit to Jimmy's Island, LLC, which
was the owner of the subdivision development at the time. The 2003 CAMA Permit authorized
development of upland subdivision infrastructure and a bulkhead along the Site's shoreline for
the subdivision known as "Waters Edge at Deerfield."
8. On May 25, 2004, DCM issued a major modification to Jimmy's Island, LLC for
the 2003 CAMA Permit ("2004 Major Mod") authorizing the development of 18 slips located on
three different piers. Nine slips (numbered 1-9) were located on the AIWW on two piers (slips 1-
4 were located on the south dock and slips 5-9 were located on the north dock). Nine slips
(numbered 10-18) were located on Mill Creek. The project was considered a marina, as more
than 10 slips were permitted, and required an Environmental Assessment ("EA") document
pursuant to the State Environmental Protection Act ("SEPA").
9. In order to comply with the requirements of 15A NCAC 7H .0208(b)(5)(E) and
"ensure that a closure of open shellfishing does not occur as a result of the project," the 18 slips
were split into 9 slips on Mill Creek and 5 slips and 4 slips on separate piers in Topsail
Sound/AIWW. See, 2004 CAMA Major Mod.
10. At the time of the 2004 Major Mod, the subdivision was owned by the developer,
Jimmy's Island, LLC. The developer used the linear feet of shoreline for the whole parcel to get
3

authorization for the 18 slips. The standards of 15A NCAC 7H .0208(b)(6)(B) limit
dock/platform area based on a site's linear shoreline length. While one of the permit conditions
of the 2004 Major Mod required the Permittee to record notice of the use of and exhaustion of
the linear feet of the shoreline for the whole parcel, no such notice was found in the chain of title
for this subdivision, though the restrictive covenants prohibit private docks.
11. When the developer subdivided the parcel into individual lots, a series of riparian
lots were created with the lot lines following the mean high water of Topsail Sound/AIWW and
Mill Creek. The owners of these riparian lots cannot build new piers because the linear feet of
shoreline was used up when the HOA's 18 existing slips were permitted and because individual
piers are prohibited by the restrictive covenants. DCM Staff acknowledges that these riparian
owners have riparian rights other than the ability to pier out from their own lots. DCM staff does
not make property ownership determinations.
12. At the time the 2003 CAMA Permit and 2004 Major Mod were issued, the
Commission's rules included the provisions found in 15A NCAC 7H .0208(a)(6) and .0208(b)(1)
which are concerned with avoiding significant adverse impacts to SAV. Petitioner seeks a
variance from these rules.
13. The nine slips were built on the two piers located in Topsail Sound/AIWW
sometime between May of 2004 and October 2005.
2008 CAMA Maior Permit Application
14. On or about September 8, 2008, Petitioner applied for a CAMA Major permit for
permission to perform new dredging in slips 5-9, which are located on the north pier.
4

15. At the time of the 2008 major permit application, the water depths surrounding
the docking facility ranged from -0.5 feet to -1.5 feet normal low water ("NLW").
16. In connection with the 2008 major permit application, DCM Field Representative
Heather Coats drafted a Field Investigation Report ("2008 Field Report") dated September 11,
2008, a copy of which was provided to the Commission as a Stipulated Exhibit. In that Field
Report, Ms. Coats stated that "submerged aquatic vegetation (SAV) is present within the boat
slips and therefore dredging would impact SAV and SAV habitat."
17. As part of the 2008 major permit application review process, the application
materials and 2008 Field Report were circulated for comment to approximately 15 resource
agencies. On October 9, 2008, the NC Division of Water Quality sent a letter to Petitioner stating
the proposed dredging would result in significant adverse impacts to SAV and it would
recommend denial of the 401 Water Quality Certification unless the project was modified to
address dredging only in areas outside of SAV habitat. The Division of Marine Fisheries and the
Wildlife Resources Commission also recommended denial of the permit due to adverse impacts
to SAV.
18. As a result of the unfavorable comments, on October 21, 2008, Petitioner
requested that its permit application be placed on voluntary hold. After a period of inactivity,
DCM closed the file and notified Petitioner by letter dated August 27, 2013.
2015 CAMA Maior Permit Application
19. On or about May 14, 2015, Petitioner submitted a CAMA Major Permit
Application ("2015 Application") proposing to dredge around Slips 1-9 (all the slips at the two
piers on the AIWW).

20. Specifically, in the project narrative for the 2015 Application Petitioner stated that
a 50 foot by 75 foot by -4 foot cut would be made along the southern dock (Slips 1-4) and a 50
foot by 100 foot by -4 foot cut would be made along the northern dock (Slips 5-9). In the
application, Petitioner states that the existing water depths average -1 feet NLW around each of
the slips. Approximately 971 cubic yards of spoil is proposed to be dredged and placed on
designated spoil island DA -203. Permission was granted by Northeast New Hanover County
Conservancy, the owner of the spoil area, to place any spoil there.
21. Petitioner indicates that the dredging is proposed primarily within the footprint of
Slips 1-9, with an overcut proposed extending beyond the footprint of the existing slips on the
AIWW side of the docking facilities. Petitioner proposes deepening the area from -1.0 foot NLW
to 4.0 foot NLW, sloping towards the AIWW. Petitioner would not dredge landward of the
slips, beyond the side boundaries of the slips, or underneath the floating docks.
22. The proposed dredging would disturb approximately 8,750 square feet of shallow
bottom habitat including the removal of SAV and would impact SAV habitat.
23. As part of the CAMA Major Permit review process, notice of the proposed project
application was posted on site, was published in the Wilmington Star News, and was sent to the
adjacent riparian owners. DCM received no objections related to this permit application.
24. As part of the CAMA Major Permit review process, DCM Field Representative
Jason Dail drafted a Field Investigation Report ("Field Report") dated July 15, 2015. In that
Field Report, Mr. Dail stated that "It should be noted SAV is still present and flourishing
in/around the existing docking facilities located along the AIWW ... SAV encompasses the vast
2

majority of the docking facility comprising slips 5-9 and spotty vegetation exists around the
docking facility comprising slips 1-4."
25. On April 28, 2015, Mr. Dail and DCM Fisheries Specialist Shane Staples visited
the Site and observed depth and the presence of SAV. On June 18, 2015, DCM Fisheries
Specialist Gregg Bodnar visited the site with other DCM Staff, and made notations of depth
measurements and the presence of SAV on a copy of a 2003 survey by Arnold Carson which had
been submitted in connection with the 2004 Major Mod. This survey had been updated with
hand -labeled depths when it was submitted to DCM in 2015. The 2015 permit application noted
that the depths were as follows: the depth at slip 4 was -2.44 feet NLW; the depth at Slip 5 was -
1.82 feet NLW, the depth at Slip 9 was -1.31 feet NLW. Mr. Bodnar's own measurements were
similar to those final depths noted in the 2015 CAMA Major Permit application. A copy of these
observations is a Stipulated Exhibit, and it is labeled "For internal rev. only. Drawing not
provided by applicant" along the bottom.
26. Based on the June 18, 2016 site visit by Mr. Bodnar and other DCM Staff, Mr.
Bodnar sketched the SAV present onto Petitioner's site plan which had been submitted with its
2015 CAMA permit application. In October of 2015, after DWR placed the application on hold
pending more information about SAV on site, Anne Deaton of DMF emailed Mr. Bodnar and
asked for his notes from the June 2015 site visit. In order to make the SAV show up better on the
sketch copy, Mr. Bodnar enlarged his field diagram and used a green highlighter to approximate
the SAV presence he observed on June 18, 2015. Mr. Bodnar also noted his observation with
more detail in his comments to DCM regarding the permit, a copy of which is attached to the
DCM Staff Recommendation.
h

27. A memo from Anne Deaton of DMF to Karen Higgins of DWR dated October 23,
2015 ("Deaton Memo") notes that she visited the Site and measured water depths at approximate
low tide. At slips 5-9, depths ranged from -0.25 meters (482 feet) to -0.54 meters (-1.77 feet)
and a portion of the floating dock was sitting on the bottom. Depths at slips 1-4 ranged from -
0.74 meters (-2.4 feet) to -0.92 meters (-3.0 feet). The Deaton Memo noted that the tidal range at
the Site was approximately one meter. A copy of the Deaton Memo is attached as a Stipulated
Exhibit to the DCM Staff Recommendation.
28. The Deaton Memo also noted that the major SAV species present during her Site
visit was shoal grass. During DCM's April and June visit, the predominant species was eelgrass.
Ms. Deaton noted that eelgrass and shoal grass tend to occur in mixed beds, with eelgrass more
abundant in the spring and early summer and shoal grass more abundant in the late summer and
fall, so this difference in species was expected.
29. According to the project narrative submitted by Petitioner in 2015, "The goal is to
restore the original depth of water at the docks when the marina area was original [sic) built (see
figure 1.), under permit 68-03." And it further states, "Approximately 3 ft. of material needs to
be removed to restore the original depth of -3 to -4 feet." The narrative concluded, "Since the
area has received depositional sediments creating shallower water depths, submerged aquatic
vegetation has colonized the northernmost end of the dock structure. Some of this SAV would be
destroyed in the dredging process. These depositional sediments could be shoaling due to the
lack of dredging by the Corps of Engineers [in] the ICWW."
30. According to a March 3, 2003 survey submitted with the 2003 CAMA Permit
application, the water depths in slips 1-9 ranged from -1.91 feet to -3.92 feet relative to NGVD
8

1929. No calculations were provided to convert these depths relative to normal low water or
normal high water. On Form DCM-MP-4 in the 2004 application for a Major Modification of the
Permit, the applicant indicated that the water depth at the waterward end of piers was -4 feet
MLW. A copy of the 2004 Major Mod Application is a Stipulated Exhibit.
31. The developer submitted an Environmental Assessment ("EA"), revised on
December 29, 2003, pursuant to the SEPA as required for marina permitting (more than 10
slips). In this December 29, 2003 revision, written by the developer's consultant Charles Hollis
and submitted in connection with the 2004 Major Mod, the site is described as follows:
Topsail Sound (AIWW) Piers. A 6 foot -wide walkway will begin along the
edge of the boundary of lots 1 and 2 and extend (elevated) across the marsh
where the two Topsail Sound piers will begin. The northernmost pier will
extend approximately 300 feet waterward from the mean high water contour to
the -4 foot (MLW) contour in Topsail Sound (AIWW). This is at a point about
65 feet waterward of the marsh edge and 80 feet away from the bottom edge of
the AIWW. This pier will accommodate 5 boats up to 24 feet in length. The
southernmost pier, located about 100 feet south of the first, will extend to a
point about 140 feet waterward of the marsh edge where the water depth is 14
feet [sic] MLW and the bottom edge of the AIWW is 80 feet away. This pier
will accommodate 4 boats up to 24 feet in length. The distance between the
marsh edges in this area is approximately 500 feet. Each of these piers will have
a 12 foot x 12 foot covered deck. This construction work will involve jetting
and/or driving timbers into the ground and constructing the pier using
conventional fasteners (nails, etc.).
The EA stated that no SAVs were observed. (Page 3) A copy of the EA was provided to the
Commission as a Stipulated Exhibit.
32. An affidavit of Raymond Ballard, an original resident in 2004, is a Stipulated
Exhibit, and indicates that the slips were deep enough for 24/7 access when they were built and
have since shoaled in.
E

33. As part of the CAMA Major Permit review process, the permit application and
Field Investigation Report were sent to other state and federal agencies for review and comment.
The following agencies replied with substantive comment: The Wildlife Resources Commission,
raised concerns about impacts to SAV and its role as essential fish habitat, DCM's Fisheries
Resources Specialist who, following a site visit and review of SAV presence and water depths,
raised concerns about impacts to SAV and its role as fish habitat, DWR's 401 Section noted a
likely denial of the 401 application based on the requirement of 15A NCAC 02B .0225(c)(2)
which prohibits dredging when it results in a reduction of beds of SAV, and the U. S. Army
Corps of Engineers ("Corps") indicated that SAV should be avoided. Copies of these comments
were provided to the Commission as Stipulated Exhibits.
34. On December 4, 2015, DCM Staff denied Petitioner's 2015 Application as it was
contrary to 15A NCAC 7H .0208(a)(2)(A) which requires dredging to avoid significant adverse
impacts upon SAV and 7H .0208(b)(1) which requires navigation channels and boat basins to
avoid beds of SAV. A copy of the denial letter was provided to the Commission as a Stipulated
Exhibit. Petitioners did not timely file a Petition for a Contested Case to challenge this decision.
Petitioner has stipulated that the proposed development is inconsistent with those rules cited in
the denial letter.
35. On December 14, 2015, DWR denied Petitioner's application for a 401 Water
Quality Certification as the proposed plan was contrary to 15A NCAC 2B .0225(c)(2), which
states in relevant part, "No dredge or fill activities shall be allowed if those activities would
result in a reduction of the beds of [SAV]" and contrary to 2B .0506(b) which states, "The
Director shall issue a certification upon determining that existing uses are not removed or
10

degraded by a discharge to classified surface waters for an activity which (3) does not result in
the degradation of groundwaters or surface waters." A copy of the DWR denial letter was
provided to the Commission as a Stipulated Exhibit. Petitioners did not timely file a Petition for
a Contested Case to challenge this decision. Petitioner has not requested the EMC grant a
variance from these rules to allow the proposed dredging.
36. On December 14, 2015, the Corps denied without prejudice Petitioner's
application for authorization to dredge. A copy of the denial letter was provided to the
Commission as a Stipulated Exhibits. Petitioners have not filed an appeal of this denial. The
parties understand that a "denial without prejudice" allows an applicant to re -submit an
application for the denied work.
37. Petitioner now requests the Commission grant a variance from its rules 15A
NCAC 7H .0208(a)(2)(A) and 7H .0208(b)(1) in order to allow Petitioner to undertake new
dredging in SAV as described in the permit application.
38. Petitioner submitted an affidavit from a member of the HOA's Board of
Directors, Dawn Beard, a licensed real estate broker. In her affidavit, Ms. Beard describes her
opinion of financial impacts on the owners of slips 1-9. A copy of the affidavit was provided to
as a Stipulated Exhibit along with comparative sales data upon which the opinion is based.
39. Petitioner submitted an affidavit from Todd Skeen, a resident of the HOA. In the
affidavit, Mr. Skeen provides his opinion on the dangers resulting from shoaling at the Site.
40. Petitioner submitted an affidavit of Whitney Skeen, a resident, who describes a
boating accident nearby the Site.

41. Petitioner submitted an affidavit from Michael Mac, a resident, President of the
HOA, and a retired scientist with the USF&W and USGS. He describes a boating accident near
the Site, issues related to shoaling at the slips, the financial benefits of the slips to the owners,
and his opinions about the SAV at the site.
42. Petitioner has drawn on the green highlighted SAV drawing made by DCM Staff
to illustrate where the proposed dredging is to take place (drawn in red) and what SAV is, and is
not to be dredged (shown in blue pen hand-written notations). A copy of the annotated SAV
drawing is a Stipulated Exhibit.
43. As part of the Fisheries Reform Act of 1997, the Commission, the North Carolina
Marine Fisheries Commission and the EMC collaborated on the Coastal Habitat Protection Plan
("CHPP"), a guidance document that addresses habitat and water quality efforts needed to
protect, enhance and restore fish habitat in North Carolina. The CHPP is subdivided into six
habitat types where coastal species forage, seek refuge, grow or spawn, one of which is SAV
habitat. A copy of the SAV section of the CHPP was provided to the Commission as a Stipulated
Exhibit.
44. The Final 2016 CHPP Source Document provides the following information
about SAV:
• Because the [SAV] plants are rooted in anaerobic sediments, they need to produce
a large amount of oxygen to aerate the roots, and therefore have the highest light
requirements of all aquatic plants. P. 84
• High salinity estuarine species that occur in North Carolina include eelgrass (Z.
marina) and shoalgrass (H. wrightii). Eelgrass is a temperate species at the
southern limit of its Atlantic range in North Carolina. In contrast, shoalgrass is a
tropical species that reaches its northern -most extent in the state. P. 84
• Despite the difficulty of defining the boundaries of SAV beds, un -vegetated
bottom between nearby patches is included as a component of patchy SAV habitat
12

because rhizomes and/or seedlings may be present and the beds migrate with
patterns of sediment erosion and deposition (Fonseca et al. 1998). P. 85
• Beds of SAV occur in North Carolina in subtidal, and occasionally intertidal,
areas of sheltered estuarine and riverine waters where there is sediment, adequate
light reaching the bottom, and moderate to negligible current velocities or
turbulence. P. 85
45. Some of the mapping efforts of SAV within the State are summarized on Page 88
of the Final 2015 CHPP Source Document.
46. Some scientific papers provide the following information about SAV:
• On the Atlantic coast, North Carolina ranks second behind Florida in SAV
presence. (Funderburk, S. L., J. A. Mihursky, S. J. Jordan, and D. Riley. 1991.
Habitat requirements for Chesapeake Bay living resources. Habitat Objectives
Workgroup, Living Resources Subcommittee and Chesapeake Research
Consortium with assistance from Maryland Department of Natural Resources,
Solomons, MD. and Sargent, F. J., T. J. Leary, D. W. Crewz, and C. R. Kruer.
1995. Scarring of Florida's seagrasses: Assessment and management options.
Florida Department of Environmental Protection, St. Petersburg, FL.)
• Observations and anecdotal information since 2000 have indicated that SAV
coverage in North Carolina is expanding into previously unobserved areas,
notably the southern coastal area. In the late 2000's DMF biologists observed
SAV expansion throughout the estuaries, which continued through 2014. (North
Carolina Department of Environmental Quality, 2016. North Carolina Coastal
Habitat Protection Plan Source Document. Morehead City, NC. Division of
Marine Fisheries. 477 p.)
• The North Carolina Coastal Habitat Protection Plan has summarized the primary
environmental factors controlling SAV distribution which are; water depth,
sediment composition, energy, and light penetration. (North Carolina Department
of Environmental Quality, 2016. North Carolina Coastal Habitat Protection Plan
Source Document. Morehead City, NC. Division of Marine Fisheries. 477 p.)
• Eelgrass (Zostera marina) is tolerant of high energy waters, and SAV is evident
along much of the extent of the AIWW (NCDEQ 2016a). Provided these factors
are within limits of the particular species, growth is possible. (Thayer, G. W., W.
J. Kenworthy, and M. S. Fonseca. 1984. The ecology of eelgrass meadows of the
Atlantic coast: a community profile. U.S. Fish and Wildlife Service and NCDEQ).
2016a. http://portal.ncdenr.org/web/mf/habitat/SAV)
13

• "Shoal grass is known as a pioneer species, colonizing areas that are too shallow
for other species to thrive in or on banks that have been damaged." Chesapeake
Bay "Shoal Grass" http://www.chesaReakebay.net/fieldguide/critter/shoal grass
47. While different divisions within DEQ have contributed resources to SAV
mapping projects, none of these mapping efforts are intended to replace field observation in
connection with a CAMA permit application. At the time of the 2004 Major Mod, not much
SAV mapping had been undertaken. The parties searched for but did not find any SAV mapping
from 2004 indicating the presence of SAV at the Site.
48. After the CAMA permit was denied, Petitioner has requested and participated in
scoping -like meetings with DCM staff and other division staff to discuss possible alternatives to
dredging including dock reconfiguration. On February 11, 2016 in a response to an inquiry from
Representative Millis, DCM Director Davis summarized the issue and DCM's response to the
issue. A copy of that response was provided to the Commission as a Stipulated Exhibit.
49. On May 20, 2016, DCM received an incomplete CAMA Major Permit application
from Petitioner which proposed relocating slips 5-9 onto the southern end of the dock with slips
1-4. These materials did not propose dredging. DCM responded to Petitioner and indicated what
information was needed to make it a complete application. Petitioner has not responded by
providing the needed information. Petitioner's President has informed DCM that because of the
cost to relocate the docks, and the requirement that the riparian owner be a co -applicant or
otherwise sign -off on development on non -HOA owned property, the HOA is not pursuing the
relocation option at this time.
14

50. On May 9, 2016, DCM was copied on a letter from counsel for Mr. Blanton who
owns Lot 2 and 3 next to the pier, requesting notice of any future CAMA Major Permit
applications filed by Petitioner.
51. A PowerPoint presentation of the Site and surrounding areas was shown to the
Commission during the hearing and is included as a Stipulated Exhibit.
STIPULATED EXHIBITS
Included with the Petition and the Staff Recommendation for the Commission's review
were the following Stipulated Exhibits:
1. Restrictive Covenants filed in the Pender County Registry at the following Books and
Pages: 2425/250, 2442/157, 2523/164, 3079/45, and 41/90/232;
2. 2005 Major Mod application;
3. 2004 Major Mod issued to Jimmy's Island, LLC on May 24, 2004;
4. omitted
5. 2008 CAMA Major Permit DCM Field Investigation Report by Heather Coats;
6. 2008 comments from DWQ;
7. 2008 comments from DMF;
8. Omitted;
9. 2015 CAMA Major Permit Application by Waters Edge HOA;
10. 2015 CAMA Major Permit DCM Field Investigation Report by Jason Dail;
11. 2015 DCM SAV notations (Internal Use note at bottom);
12. 2015 DCM SAV field notes enlarged and with green highlighting added;
13. 2015 Deaton Memo;
14. 2003 Depth Survey (NGVD'29 benchmark used);
15. December 29, 2003 revised Environmental Assessment;
16. Affidavits of Petitioner -members Raymond Ballard, Todd Skeen, Whitney Skeen, and
Michael Mac;
17. 2015 comments from WRC;
18. 2015 comments from DCM's Fisheries Specialist with Site visit notes;
19. 2015 comments from DWR;
20. 2015 comments from Corps;
21. 2015 DCM Denial Letter;
22. 2015 DWR 401 Denial Letter;
23. 2015 Corps Denial Letter;
24. Affidavit of Dawn Beard;
25. NC Coastal Habitat Protection Plan 2016 Source Document- Selected Chapters include:
SAV Section (Chapter 4), Physical Disturbances (Chapter 8), and Management Section
(Chapters 13-15);
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26. February 11, 2016 response from DCM to Representative Millis;
27. May 9, 2016 letter to DCM from Blanton's Counsel;
28. Three exhibits by Petitioner, adding notations onto the green -highlighted SAV drawing
made by DCM;
29. PowerPoint presentation.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and the subject matter.
2. All notices for the proceeding were adequate and proper.
3. Petitioner has met the requirements in N.C.G.S. § I I3A-120.1(a) and 15 NCAC
07J .0703(f) which must be found before a variance can be granted as set forth below.
a. Petitioner has affirmatively shown that strict application of the
Commission's rules will cause unnecessary hardships.
The Commission adopted 15 NCAC 7H .0208(a)(2)(A) and 15 NCAC 7H .0208(b)(1) to
ensure that development is sited and designed to avoid significant adverse impacts upon the
productivity and biologic integrity of submerged aquatic vegetation. Without the variance,
Petitioner would not be able to perform new dredging around existing boat slips 1-9.
In support of the variance request, Petitioner argued that the 2004 CAMA permit
authorized construction of a 9 -slip community boat dock facility located directly on the AIWW.
The slips constructed under the permit provided direct access for the 18 -lot Waters Edge
subdivision. At the time the permit was issued, the natural draft within the slips was more than
sufficient to support direct access. Since issuance of the 2004 permit, the slips have "shoaled in."
According to Petitioner, the slips are now virtually unusable. Petitioner has applied for
permission to dredge the slips to -4 feet NLW. Petitioner asserts that strict application of these
rules would cause Petitioner unnecessary hardship insofar as such application would prohibit the
use of the community boat dock as approved in the earlier CAMA Permit; impede and render
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navigation in the vicinity of the boat slips hazardous; subject boats and associated equipment
stored and used at the boat slips to damage; and substantially reduces the fair market value of
Waters Edge subdivision homesites.
In its Staff Recommendation, DCM objected to the variance on the grounds that strict
application of the rules does not create an unnecessary hardship for Petitioner. Specifically,
DCM pointed out that the purpose of the Commission's rules is to protect SAV and SAV habitat
as it is an important fish habitat used by coastal species where they can "forage, seek refuge,
grow or spawn." DCM argued that the community slips for the Waters Edge subdivision on the
AIWW were marginal when originally developed insofar as they were located at depth (as
reported in the 2004 DCM Field Report) ranging from -1.5 feet to less than -4 feet at the deepest
point and consequently had a potential for shoaling. DCM Staff also pointed out that the rules
from which Petitioner seeks a variance were in place in 2004 and prohibited new dredging
projects in areas with SAV and SAV habitat. Finally, DCM argued that Petitioner can continue
to make use of the docking facility for riparian uses such as boating even if the size and draft of
boats using the slips would be limited by the existing depth.
Following discussion regarding what information was available regarding the water
depths at the Site in 2004 and whether SAV was located in the area at the time of the piers and
slips were constructed under the authority of the 2004 CAMA permit, a majority of the
Commission was persuaded by Petitioner's arguments and affirmatively found that Petitioner has
met the first factor without which a CAMA variance cannot be granted.
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b. Petitioner has demonstrated that the hardship results from conditions
peculiar to Petitioner's property.
The Commission affirmatively finds that Petitioner has demonstrated that the hardship
results from conditions peculiar to the property, such as location, size or topography.
Specifically, Petitioner's property is adjacent to the AIWW which is a major navigational
dredged channel. There is no SAV mapping that indicates SAVs were located within the boat
slips when they were initially constructed. SAVs typically do not colonize or become established
immediately adjacent to a major navigational, heavily -traversed and consistently maintained and
dredged channel. That SAVs have become established here may be a result of the shoaling which
has occurred around the docking facility. The Commission affirmatively finds that Petitioner has
demonstrated that this hardship results from conditions peculiar to the property and has met the
second factor required for the granting of its request for a variance.
C. Petitioner has demonstrated that hardship does not result from its actions.
The Commission affirmatively finds that Petitioner has demonstrated that the hardship
does not result from actions taken by the Petitioner. In its Staff Recommendation, DCM points
out that Petitioner's predecessor in interest, the developer, chose to develop slips on the AIWW
shoreline of the subdivision. The location choice and marginal AIWW shoreline seem to be the
primary cause of the hardships in this case, as shallow water is the preferred habitat for SAV. In
its Staff Recommendation, DCM agrees that the hardships do not result from actions taken by
Petitioner and does not allege that SAVs were present in the area of the docks when the 2004
CAMA permit was issued. While there is room to move the piers at issue along the AIWW
shoreline where no SAV is currently present, the private ownership of the upland lot in the
alternative location appears likely to prevent the resolution of this issue by moving the piers.
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For these reasons, the Commission affirmatively finds that Petitioner has demonstrated
that the hardships do not result from its actions. Thus, Petitioner has met the third factor required
before a variance can be granted.
d. Petitioner has demonstrated that the requested variance is consistent with
the spirit, purpose and intent of the Commission's rules, will secure public
safety and welfare, and will preserve substantial justice.
In support of its request for a variance, Petitioner argues that the requested variance is
consistent with the spirit, purpose and intent of the Commission's rules and relies on the
Commission's management objective for Public Trust Area AECs. The language of this rule
notes the importance of protecting the economic and aesthetic value of Public Trust Areas:
Management Objective. To protect public rights for navigation and
recreation and to conserve and manage the public trust areas so as
to safeguard and perpetuate their biological, economic and
aesthetic value.
15A NCAC 7H .0207(c) This rule acknowledges that a balance must be struck between all of
these important values of the public trust areas. Economic and aesthetic values do not trump a
waterbody's biological importance. Nor is safeguarding public navigation privileged above other
uses. The value of SAV has been understood and acknowledged in the CRC's rules for decades.
The importance of SAV habitat is further highlighted by the Coastal Habitat Protection Plan as
being essential for coastal species where they can "forage, seek refuge, grow or spawn." Species
which spend significant portions of their lifecycle in SAV include spotted sea trout, red drum,
bay scallop, shrimp, hard clam, flounder, juvenile gag grouper and black sea bass.
In support of its request, Petitioner also cites a rule of the Environmental Management
Commission, 15A NCAC 2B .0225, which allows for maintenance dredging under certain
conditions. In making its decision here, the Coastal Resources Commission is not relying on or
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providing a variance from the rules of the Environmental Management Commission. This
Commission specifically notes that the new dredging proposed here is not for the maintenance of
an existing channel. Rather, Petitioner's CAMA application is for new dredging to increase
access for the Petitioner and its users to the AIWW from the existing docking facilities.
During discussion, the Commission noted that the original 2004 CAMA permit
authorized construction of 18 slips located on three piers. Condition 10 of the 2004 CAMA
Permit relates to one of the piers - the Mill Creek pier, which is located within a primary nursery
area. Condition 10 explicitly prohibits any new dredging or excavation throughout the entire
existence of the permitted structure on Mill Creek because it is in a primary nursery area. The
Mill Creek pier is not the subject of this variance request. The 2004 CAMA Permit does not have
a similar prohibition for the two piers which include slips 1-9 which are the subject of this
request.
After considering the requirements of its rules, the Commission determined that
Petitioner's request for new dredging in an area with SAV habitat in order to provide reasonable
riparian is consistent with the balancing required to conserve and manage the public trust areas
so as to safeguard and perpetuate their biological, economic and aesthetic value. Thus, the
Commission finds that Petitioner has shown that the requested variance is consistent with the
spirt, purpose, and intent of the rule.
Second, the Commission found that public safety will be enhanced by dredging the area
around the nine slips to a depth of -4 NLW. By granting Petitioner's request, safe boating access
will be improved.
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Third, the Commission finds that allowing new dredging will preserve substantial justice
and allow boaters to use the slips in a manner that grants reasonable and safe access to the
AIWW without damage to their boat or the associated boat lifts and other dockage equipment. In
its Staff Recommendation, DCM argued that it would not preserve substantial justice to allow
Petitioner to dredge in an area not dredged before in order to "realize their reasonable,
investment -backed expectations" when Petitioner unreasonably assumed they could have
unfettered access to the AIWW from a marginal site. DCM further pointed out that the rules
limiting SAV dredging were in place at the time of permitting and construction, and while SAV
may not have been present at the Site in 2004, the site was shallow enough at that time to
constitute SAV habitat. Notwithstanding DCM's arguments, the Commission affirmatively
found that it would provide substantial justice to allow Petitioner a variance authorizing new
dredging as described more fully in Petitioner's permit application at the northern section of the
existing docking facility which is primarily located within the footprint of slips 5-9.
Following its review of the Stipulated Facts and Stipulated Exhibits and arguments
presented by the parties, the Commission affirmatively finds that Petitioner has met the fourth
factor required by N.C.G.S. § I I 3A- 120. 1 (a).
ORDER
THEREFORE, the requested variance from 15A NCAC 7H. 0208(a)(2)(A) and
.0208(b)(1) is GRANTED. Petitioner is authorized to dredge as requested in its application to a
maximum depth of -3.92 feet NLW based on the information provided in Stipulated Fact No. 30
as to the depth around piers 1-9 in 2003.
The granting of this variance does not relieve Petitioner of the responsibility for obtaining
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any other required permits from the proper permitting authority or other required variances from
the Environmental Management Commission. This variance is based upon the Stipulated Facts
set forth above. The Commission reserves the right to reconsider the granting of this variance
and to take any appropriate action should it be shown that any of the above Stipulated Facts is
not true or the facts upon which this request was granted have materially changed.
This the 22`h day of December, 2016.C -W
�4 A 4 AVO �M
Frank D. Gorham, III, Chairman
Coastal Resources Commission
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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing FINAL AGENCY DECISION
upon the parties by the methods indicated below:
Chris Blake, Registered Agent
Water's Edge HOA, Inc.
2108 Capital Drive, Suite 102
Wilmington, NC 28405
Michael J. Mac, President
Water's Edge HOA, Inc.
Stephen D. Coggins
Rountree Losee, LLP
P.O. Box 1409
Wilmington, NC 28402
Certified Mail/Return Receipt Requested
and
Electronically at:
cblakeQ,communitysolutionse.com
Electronically at:
mikeimac 11 na,amail.com
U.S. Mail and Electronically at
Scoggins(a,rountreelosee.com
Christine A. Goebel, Esq. Electronically at
Assistant General Counsel christine.goebel @ncdenr.gov
N.C. Department of Environmental Quality
217 West Jones Street
Raleigh, NC 27699-1601
Braxton C. Davis, Director of DCM electronically:
Mike Lopazanski. Acting Assist. Director, DCM Braxton.Davisna,ncdenr.gov
Angela Willis, Administrative Assistant Mike.Lopazanski ,ncdenr.gov
400 Commerce Ave. Angela.Willis cn denr.gov
Morehead City, NC 28557
This the 22`h day of December, 2016.
jjX,e., e. 0lf
Lucasse
Spd_cjPYDeputy Attorney General and Commission Counsel
N.C. Department of Justice
P.O. Box 629
Raleigh, N. C. 27602
23