20181699 Ver 1_Staff Comments_20190422

ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
BRAXTON C. DAVIS
Director
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Shinn Creek Estates HOA
c/o Ben Stephenson
6433 Shinn Creek Lane
Wilmington, NC 28409
Dear Mr. Stephenson:
NORTH CAROLINA
Environmental Quality
April 22, 2019
This letter is in response to the application for a Major Permit under the Coastal Area Management
Act (CAMA) and the State Dredge and Fill Law, in which authorization was requested to excavate a
channel from a community boat ramp to the Atlantic Intracoastal Water Way (AIWW) adjacent to
the AIWW and Masonboro Sound, at the terminus of Shinn Creek Lane, in Wilmington, New
Hanover County. Processing of the application, which was received as complete by the Division of
Coastal Management's Wilmington Office on November 27, 2018 is now complete. Based on the
state's review, the Division of Coastal Management (DCM) has made the following findings:
1) The subject property is located adjacent to the AIWW and Masonboro Sound and is located
within a Primary Nursery Area (PNA), as designated by the North Carolina Marine Fisheries
Commission. 15A NCAC 07H. 0208(a)(4) of the Rules of the Coastal Resources
Commission further define PNA's as "Primary nursery areas are those areas in the
estuarine and ocean system where initial post larval development of fin fish and crustaceans
takes place. They are usually located in the uppermost sections of a system where
populations are uniformly early juvenile stages. They are designated and described by the
N. C. Marine Fisheries Commission (MFC) and by the N. C. Wildlife Resources Commission
(WRC);"
2) The proposed project would involve development within Public Trust and Estuarine Waters
Areas of Environmental Concern (AEC).
3) The applicant proposes to perform maintenance dredging of an existing 25' by 30' boat basin
to a depth of -3' at mean low water (MLW) and maintenance dredging of an existing access
channel measuring approximately 600' in length by 8' in width to a depth of -3' at MLW.
The applicant also proposes to perform new dredging in an area referred to as the "S -Curve"
measuring approximately 405' in length and 8' in width to a depth of -3' at MLW. The
applicant also proposes to perform maintenance dredging within the channel running parallel
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NORTH CAROIJNA �
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North Carolina Department of Environmental Quality I Division of Coastal Management
Morehead City Office 1 400 Commerce Avenue I Morehead City, North Carolina 28557
252.808.2808

Shinn Creek Estates HOA
c/o Ben Stephenson
April 22, 2019
Page 2 of 4
to Inlet View Drive measuring approximately 80' in length by 8' in width to a depth of -3' at
MLW. The total proposed length of the access channel is 1085'.
4) In the original submittal dated received in DCM's Wilmington office on November 7, 2018,
vertical breakwaters measuring approximately 230' in length were proposed along the "S-
curve" bank area. In a revised submittal dated April 10, 2019, the breakwaters were removed
from the project proposal, and several areas of proposed oyster shell placement were added to
the banks of the access channel.
5) The existing community boat ramp and associated dredging were authorized under CAMA
Major Permit No. 72-82. Permit No. 72-82 was originally issued on June 22, 1982 for
maintenance dredging of a 25' by 30' boat basin and a 670' by 20' access channel to a depth
of -5' at MLW. The permitted access channel was not authorized to connect to the AIWW.
Permit No. 72-82 has undergone several modifications, refinements, and renewals. A Major
Modification to Permit No. 72-82 for dredging in a similar alignment to the current proposal
was denied on June 20, 2000. Permit No. 72-82 expired on December 31, 2015.
6) No permit history for maintenance excavation within the "S -Curve" area was provided by the
applicant, nor was any such evidence located by DCM Staff.
7) The southernmost portion of the proposed dredge footprint, measuring approximately 80' in
length by 8' in width to a depth of -3' at MLW, falls within a previously dredged and
maintained channel adjacent to Inlet View Drive. According to aerial photography this area
was originally excavated sometime in the 1970s (prior to the enactment of CAMA) and has
since been maintained through various CAMA General Permits.
8) The application indicates the existing water depths in the maintained access channel areas
range from -2' to -3' at MLW. The application also indicates that the existing water depths
within the "S -Curve" range from 0' to -1' at MLW.
9) The NC Division of Coastal Management has determined that the proposed project consists
of new dredging in a PNA measuring approximately 405' in length and 8' in width.
Approximately 3,240 square feet of undredged Primary Nursery Area habitat would be
excavated as a result of the proposed project.
10) During the course of the joint state and Federal review of the application, the N.C. Division
of Marine Fisheries (DMF) indicated that, "DMF objects to this project as proposed due to
the significant adverse impact to habitat and resources that will result from this project."
Further, after reviewing the April 10, 2019 revised submittal, DMF provided additional
comments that stated "Although the updated plans have addressed ways to stabilize the
channel in a more ecologically preferred method than vertical breakwaters, there is still a
concern with performing new dredging in designated PNA habitat. DMF is a strong supporter
of oyster habitat creation, however, it is not our policy to mitigate impacts by allowing
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0"M m id Of &NIMMnemal Ma�ly
North Carolina Department of Environmental Quality I Division of Coastal Management
Morehead City Office 1 400 Commerce Avenue I Morehead City, North Carolina 28557
252.808.2808

Shinn Creek Estates HOA
c/o Ben Stephenson
April 22, 2019
Page 3 of 4
habitat trade-offs. DMF will maintain the same concerns about new dredging in PNA and
would again object to the dredging." The National Marine Fisheries Service and the U.S.
Army Corps of Engineers also recommended that the new dredging within the PNA not be
allowed.
11) The City of Wilmington objected to the vertical breakwaters stating, "Breakwaters not
permitted within 35' of resource per City Code Section 18-341(e). Proposed breakwaters
must be removed from plans for City approval."
12) As of the date of this letter, the NC Division of Water Resources is still reviewing the
proposed project to determine if the project complies with State water quality standards.
13) Based upon the above referenced findings, the Division of Coastal Management has
determined that the proposed project to perform new dredging for the construction of an
access channel are inconsistent with the following rules of the Coastal Resources
Commission:
a) 15A NCAC 07H .0206 (c) (Management Objectives for Estuarine Waters), which
states "To conserve and manage the important features of estuarine waters so as to
safeguard and perpetuate their biological, social, aesthetic, and economic values; to
coordinate and establish a management system capable of conserving and utilizing
estuarine waters so as to maximize their benefits to man and the estuarine and ocean
system."
b) 15A NCAC 07H .0208(a)(2)(A), which states that "before being granted a permit, a
determination shall be made that the applicant has complied with the following
standards.-
(A)
tandards:
(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. "
C) 15A NCAC 07H .0208(b)(1) (Specific Use Standards), which states in part,
"Navigation channels, canals, and boat basins shall be aligned or located so as to
avoid primary nursery areas, shellfish beds, beds of submerged aquatic vegetation as
defined by the MFC ".
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Qepartmant of RMMra antal Quality
North Carolina Department of Environmental Quality I Division of Coastal Management
Morehead City Office 1 400 Commerce Avenue I Morehead City, North Carolina 28557
252.808.2808

Shinn Creek Estates HOA
c/o Ben Stephenson
April 22, 2019
Page 4 of 4
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. I I 3A- I 20(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 § 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.
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 contacting a member of my staff, or by visiting the Division's
web page at: https:Hdeq.nc.gov/about/divisions/coastal-management/coastal-management-
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 Ms. Courtney Spears at (910)
796-7426.
Sincerely,
Braxton C. Davis
cc: U.S. Army Corps of Engineers, Wilmington, NC
OCRM/NOAA, Silver Spring, MD
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NORTH CAROLINA
0gmriment of Enwimmn nftl amity
North Carolina Department of Environmental Quality I Division of Coastal Management
Morehead City Office 1 400 Commerce Avenue ( Morehead City, North Carolina 28557
252.808.2808