20060197 Ver 1_DCM Comments_20060214

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Coastal Management
Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary
February 10, 2006
Kim Williams
Land Management Group, Inc.
PO Box 2522
Wilmington, NC 28402
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SUBJECT: Incomplete Notice on the Consistency Certification Submission for the Proposed
Impact to 0.295 Acres of Wetland and 72 Linear Feet of Stream for the Proposed
Helmsdale at Landfall Subdivision, New Hanover County (DCM#20060010)
Dear Ms. Williams:
The Division of Coastal Management (DCM) received (on February 6, 2006) a consistency
certification from the Land Management Group on behalf of Helmsdale Investors, LLC that the
proposed impact to 0.295 acres of wetland and 72 linear feet of stream to facilitate infrastructure
improvements for the Helmsdale Subdivision in New Hanover County would be consistent with
the enforceable policies of the State's coastal management program.
DCM staff has reviewed the consistency submission and determined that the submission is
incomplete since it does not meet the information requirements of 15 CFR 930.58. Section
15 CFR 930.58 requires that the applicant furnish DCM with the necessary data and information
required for DCM to evaluate the consistency certification for conformance with the State's
coastal management program. The consistency certification submission letter (February 1, 2006)
of the Land Management Group contained just a conclusory statement. Pursuant to
15 CFR 930.58(3) the consistency certification must contain an analytical assessment supported
by a set of findings relating the coastal effects of the proposal and its associated facilities to the
relevant enforceable policies of the State's coastal management program.
The applicable enforceable coastal program policies for this proposed project are Sections
15A NCAC 07M .0700 and 15A NCAC 07M .0800 of Chapter 7 of Title 15A of North
Carolina's Administrative Code. Section 15A NCAC 07M .0700 requires that adverse impacts
to coastal lands and waters be mitigated or minimized through proper planning, site selection,
compliance with standards for development, and creation or restoration of coastal resources. The
consistency submission letter does not document how the proposed project utilized proper site
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selection and design criteria to minimize adverse impacts; it merely asserts that the impacts have
to be allowed to lessen the economic burden to the developer, not to protect the resources at risk.
Additionally, the consistency certification submission does not disclose what measures, pursuant
to 15A NCAC 07M .0800, have been taken to "control development so as to eliminate hay°mful
runoff which may impact the sounds and rivers of the coastal area and the adoption of best
management practices to control runoff from undeveloped lands is necessary to prevent the
deterioration of coastal tivaters"1.
The consistency submission letter notes that the land-use plan for New Hanover County was
reviewed. However, there is no affirmative evaluation demonstrating how the proposed project
would be consistent with the New Hanover County land-use plan. Consistency with the New
Hanover County land-use plan and zoning code can be can be accomplished by one of several
means. First, a copy of the subdivision approval for the project from New Hanover County can
be submitted to DCM. Second, by providing DCM with an analysis (including appropriate
maps) based on the of the land-use designation and zoning of the project site. Please provide an
analytical analysis including documentation of how the subdivision was consistent with the
land-use and zoning.
The proposed project anticipates impacting 0.295 acres of wetland and 72 linear feet of stream.
According to the Land Management consistency certification submission, the applicant proposes
to mitigate the proposed impacts within a site designated in Figure 13. Nevertheless, questions
remain concerning the scope of the proposed mitigation. First, the consistency submission states,
"The applicant is in the process of developing a complete mitigation plan for this area." A
complete mitigation plan is required in order to assess whether the proposed mitigation would
adequately resolve unavoidable adverse impacts to coastal resources. Second, the consistency
submission states that restrictive covenants will be recorded on all remaining wetlands to protect
approximately 8.25 acres of wetlands. However, a draft of the proposed language and a graphic
displaying the wetlands to be protected was not supplied with the submission. Please provide a
final mitigation plan, sample deed restriction, and graphic displaying the wetlands to be
protected.
Please note, mitigation can only be allowed where there is no prudent alternate design or location
for the project that would avoid the losses to be mitigated. Prudent designs for minimizing
impacts, especially to streams, include avoiding the fill and/or channelization of wetlands and
streams. channelization can increase the flow of pollutants into coastal waters which would not
be consistent with 15A NCAC 07M .0800. Furthermore, while the proposed stream impact may
be considered insignificant, the incremental cumulative effect of continuing to allow
channelization, in the long term, will have a significant adverse impact to coastal water quality.
Based on the proximity of the project site to an unnamed tributary of Howe Creek there is a
potential that some project elements may be within an Area of Environmental Concern (AEC) as
defined by § 113A-113 of the Coastal Area Management Act of 1974. Should certain project
elements be located within an AEC a CAMA permit may be required. Please contact Robb
Mairs in DCM's Wilmington Office at 910-796-7215 to evaluate this potential issue.
The issuance of a water quality certification from the NC Division of Water Qi-ality can be used to
demonstrate consistency with 15A NCAC 07M .0800.
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Please note, that the Office of Coastal Resource Management (OCRM) issued modified
consistency rules that became effective on February 6, 2006. This proposed project and all
future consistency submissions, will be affected by the change to 15 CFR 930.58(a)(2). The
effect of this change authorizes DCM to withhold filing a consistency certification until other
required State applications, such as an application by the Land Management Group to DWQ for
water quality certification, are filed complete by the respective agency. As the other State
agencies file any required applications complete, please provide DCM with a copy of those
letters. Additionally, the final decision by DCM on whether the proposed project is consistent or
is not consistent with the enforceable policies of the State's coastal program will not be made
until all other required State approvals have been obtained.
Please prepare a response that addresses the information requirements noted above. Upon
receipt of your response, DCM will review it for completeness pursuant to the requirements of
15 CFR 930.60 DCM. Once this project is filed complete, a public notice will be issued and the
proposed project will be circulated to other State agencies for review. Thank you for your
consideration of the North Carolina Coastal Management Program.
Sincerely,
Stephen Rynas, AICP
Federal Consistency Coordinator
Cc: Doug Huggett, Division of Coastal Management
Jim Gregson ,Division of Coastal Management
Rob Mairs, Division of Coastal Management
Brad Shaver, U.S. Army Corps of Engineers
Noelle Lutheran, Division of Water Quality
Cyndi Karoly, Division of Water Quality
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