20170555 Ver 1_DCM Permit Denial_20170919

Coastal Management
ENVIRONMENTAL QUALITY
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Frank Fortescue
865 Sladesville Road
Scranton, NC 27875
Dear Mr. Fortescue:
September 19, 2017
ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
BRAXTON C. DAVIS
Director'
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This letter is in response to your application for a Major Permit under the Coastal Area &�N
Management Act (LAMA) and the State Dredge and Fill Law, in which authorization was
requested to perform maintenance excavation of the channelized headwaters of Smith Creek,
adjacent to the Pungo River, near Pudddin Hill Road in Hyde County. Processing of the
application, which was received as complete by the Division of Coastal Management's
Washington Office on April 19, 2017 is now complete. Based on the state's review, the Division
of Coastal Management has made the following findings:
1) The subject property is located off SR 1152, Puddin Hill Road near Scranton, in Hyde
County.
2) The proposed project would involve development within Public Trust, Public Trust
Shoreline, and Coastal Wetland Areas of Environmental Concern (AEC).
3) The proposed project is located within the Tar -Pamlico River Basin, and is therefore
subject to the buffer requirements of the N.C. Division of Water Resources.
4) The proposed project involves application under the Coastal Area Management Act and
the State Dredge and Fill Law requesting authorization to perform maintenance dredging
within the southern channel and the placement of spoil long the southern bank of the
channel. The resulting spoil deposition would result in the fill of approximately 16,668
ft' of coastal wetlands and approximately 3,780 ft2 of §404 wetlands.
5) Coastal wetlands are described in 15A NCAC 07H.0205(a). The significance of coastal
wetlands is described in 15A NCAC 07H.0205(b), which states "The unique productivity
of the estuarine and ocean system is supported by detritus (decayed plant material) and
State of North Carolina I Environmental Quality I Coastal Management
Morehead City Office 1400 Commerce Avenue I Morehead City, NC 28557
2528082808

September 19, 2017
Page 2
nutrients that are exported from the coastal wetland. Without the wetlands, the high
productivity levels and complex food chains typically found in estuaries could not be
maintained. Additionally, coastal wetlands serve as barriers against food damage and
control erosion between the estuary and the uplands. "
6) DCM field staff recommended denial of the permit based upon several inconsistencies
with rules of the Coastal Resources Commission, as well as a determination that
alternatives may exist that could further reduce impacts to Coastal Wetlands.
7) The DCM Fisheries Resource Specialist objected to the proposal due to negative impacts
to downstream water quality, submerged aquatic vegetation and habitat for numerous
fisheries important species. The Wildlife Resources Commission also expressed
significant concerns over the permanent impact to wetlands and the loss of wildlife
habitat.
8) On August 24, 2017 N.C. Division of Water Resources (DWR) denied the 401 Water
Quality Certification and the Tar -Pamlico River Basin Buffer Aauthorization.
9) Based upon the above referenced findings, the Division has determined that the proposed
project, including the spoil deposition within Coastal Wetlands, is inconsistent with the
following Rules of the Coastal Resources Commission:
a) 15A NCAC 07H.0205(c) (Management Objectives for Coastal Wetlands), which
states "It is the objective of the Coastal Resources Commission to conserve and
manage coastal wetlands so as to safeguard and perpetuate their biological,
social, economic and aesthetic values, and to coordinate and establish a
management system capable of conserving and utilizing coastal wetlands as a
natural resource necessary to the functioning of the entire estuarine system."
b) 15A NCAC 07H.0208(a)(2)(A), and 15A NCAC 07H.0208(a)(2)(B) which states
that "before being granted a permit, a determination shall be made that the
applicant has complied with the following standards:
(A) 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 (Rule .0203 of this subchapter) 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; and
(B) Development shall comply with state and federal water and air quality
standards;
State of North Carolina I Environmental Quality I Coastal Management
Morehead City Office 1 400 Commerce Avenue I Morehead City. NC 28557
252 808 2808

September 19, 2017
Page 3
c) 15A NCAC 07H.0208(b)(1)(B) which states that "All dredged material shall be
confined landward of regularly and irregularly flooded coastal wetlands."
d) 15A NCAC 07H.0208(b)(1)(C) which states that "Dredged material from
maintenance of channels and canals through irregularly flooded wetlands shall
be placed on non -wetland areas, remnant spoil piles, or disposed of by a method
having no significant, long-term wetland impacts. Under no circumstances shall
dredged material be placed on regularly flooded wetlands."
e) 15A NCAC 07H.0601, which states that "No development shall be allowed in any
AEC which would result in a contravention or violation of any rules, regulations,
or laws of the State of North Carolina or of local government in which the
development takes place. "
Given the preceding findings, it is necessary that your request for issuance of a CAMA Major
Permit under the Coastal Area Management Act and State Dredge and Fill Law 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 local land use
plans, and N.C.G.S. 113-229, which requires that a permit be denied for cases where a proposed
development will lead to a significant adverse impact to fisheries resources.
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
the form of a written petition, complying with the requirements of §15013 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. A copy of this petition should be filed with this office.
Another response to a permit denial available to you is to petition the Coastal Resources
Commission for a variance to undertake a project that is prohibited by the Rules of the Coastal
Resources Commission. Applying for a variance requires that you first acknowledge and
recognize that the Division of Coastal Management applied the Rules of the Coastal Resources
Commission properly in processing and issuing this denial. You may then request an exception
to the Commission's Rules based on hardships to you resulting from unusual conditions of the
property. 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 for the variance request
to be eligible to be heard at that meeting. The standard variance forms may be obtained by
State of North Carolina I Environmental Quality I Coastal Management
Morehead City Office 1 400 Commerce Avenue I Morehead Cay, NC 28557
252 808 2808

September 19, 2017
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contacting a member of my staff, or by visiting the Division's web page at:
httsp Hdeq.nc.gov/abouUdivisions/coastal-management/coastal-mana eg ment-permits/variances-
appeals.
Members of my staff are available to assist you should you desire to modify your proposal in the
future. If you have any questions concerning this matter, please contact Mr. Gregg Bodnar at
[phone] extension 215.
Sincerely,
`�\�
Braxton C. Davis
cc: Col. Robert J. Clark - U.S. Army Corps of Engineers, Wilmington, NC
S. Jay Zimmerman - Director NC Division of Water Resources, Raleigh, NC
Roland Tooley - Tooley Farms Inc., 725 Lynnsburg Rd., Scranton, NC
Karen Higgins — NC Division of Water Resources, Raleigh, NC
Raleigh Bland — U.S. Army Corps of Engineers, Washington, NC
Anthony Scarbraugh — NC Division of Water Resources, Washington, NC
State of North Carolina I Environmental Quality l Coastal Management
Morehead City Office 1 400 Commerce Avenue I Morehead City, NC 28557
252 808 2808