20090337 Ver 2_Other Agency Comments_20090817

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF: August 14, 2009
Regulatory Division
Action ID: SAW-2007-02699
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AUG 17 2009
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WE71ANDS AND STt M SMKH
Mr. Calvin Peck
Village of Bald Head Island
Post Office Box 3009
Bald Head Island, North Carolina 28461-7000
Dear Mr. Peck:
Please reference our July 27, 2009 letter responding to your June 18, 2009 request to modify the
Department of the Army (DA) Permit issued June 18, 2009 to the Village of Bald Head Island,
authorizing a one-time placement of approximately 2 million cubic yards of beach fill from Jay
Bird Shoals along the South and West Beaches of Bald Head Island, North Carolina. This
authorization was conditioned upon the work occurring between November 16`I' and March 31 S`
and excavation from Jay Bird Shoals not exceeding a finished depth of -22.0 ft (NGVD). In your
June 18, 2009 letter you request to modify this authorization to allow dredging operations to
begin on September 15`I', 2009 and to increase the allowable excavation depth on Jay Bird Shoals
from -22.0 ft to -24 ft (NGVD). Reference is also made to the March 30, 2009 document titled
"Environmental Assessment, Bald Head Island Beach Restoration Project" submitted on your
behalf by Land Management Group (LMG) and the resource agency meeting held at Bald Head
Island on August 4, 2009.
We have fully evaluated your permit modification request in light of the information you have
provided, observations and discussions during the August 4, 2009 onsite meeting and the
referenced Environmental Assessment (EA). Based on this evaluation, the Corps cannot concur
with your stated need to begin dredging on September 15, 2009, your characterization of this
modification as an emergency, or your evaluation of the proposed modification's impacts on
endangered species and Essential Fish Habitat (EFH). In addition, we have determined that the
proposed early start date will result in greater environmental impacts than the authorized project,
and we have not been presented with adequate information to show that the project, as permitted,
is not a practicable project.
With regards to your request to increase the maximum allowable excavation depth on the Jay
Bird Shoals borrow area to -24 feet, federal resource agencies have indicated no objections
provided there is an accompanying reduction in overall excavation footprint. In order for us to
finalize our review of this part of your request, please provide information on the reduction of
footprint that will be facilitated by this increase in depth.
r
You have not demonstrated that the project, as currently authorized, is not a reasonable and
practicable method of accomplishing your stated purpose. Your June 18, 2009 permit
modification request states that the need to begin work on September 15th is due to "the limited
number of dredge contractors available... and construction requirements unique to Bald Head
Island". In this correspondence you express concern that "winter weather conditions" m4y
hinder operation and that overall, the approved construction window may be insufficient to
complete the approved work. You also discuss the fact that you must replace the existing sand
tube groins within the same timeframe. Each of these factors was known well prior to the
issuance of your current permit yet none were discussed as limiting the practicability of the
project as permitted. Your June 18, 2009 letter goes on to discuss the potential benefit to all
beach nourishment projects within North Carolina if the standard November 16 to March 31
dredging window can be "widened." The Corps recognizes that allowing work during the
summer months would likely increase plant availability and, in some instances, reduce project
cost. This does not however, lead to the conclusion that conducting your project within the
November16 to March 31 window as authorized is impracticable or unreasonable. In our July
27, 2009 response to your modification request, we requested you provide detailed information
explaining why the project, as currently authorized, is not practicable. We here reiterate that
request.
By letter dated July 31, 2009, your consultant Land Management Group (LMG) responded to our
July 27, 2009 letter. In this correspondence LMG states that "Impacts to environmental
resources will be the same or less by initiating the project on September 15." In support of this
statement, LMG references the lack of stable habitat on the beach and information contained in
literature and the Environmental Assessment (EA). The draft Environmental Assessment
submitted by LMG states that "timing of the dredging is important in light of peak recruitment
periods and adult activity" and that "Avoiding these peak periods of biological activity (i.e.
dredging late fall through winter) will facilitate post-dredging recovery." The EA goes on to
state that "Seasonality of the proposed dredging is important in consideration of species presence
during various life stages" and "peaks in abundance and taxonomic diversity coincide with
seasonal increases in water temperatures." The Essential Fish Habitat (EFH) assessment
prepared for the project by LMG states "The proposed timing of the dredging (November
through March)... will help minimize negative impacts to fish species", and that the "greatest
sensitivity of potential dredging impacts to fish species is from April through October." The
EFH assessment concludes that "Project activities will occur during designated windows of
reduced biological activity therefore, cumulative impacts to EFH within the project area will be
minimized and remain relatively minor."
Information included in the National Oceanic and Atmospheric Administration's (NOAA), 1991,
"Estuarine Living Marine Resources Report for the South Atlantic" supports that an earlier start
date would increase the likelihood of adverse effects to several managed and/or commercially
important fisheries species. Focusing on information relative to the Cape Fear, the presence of
species such as Sheepshead (adults and juveniles), Weakfish (adults and juveniles), Atlantic
croaker (adults), Black drum (adults), Striped mullet (adults) and Spanish mackerel (adults)
decrease from "abundant" to "common" during the October to November timeframe. The
presence of species including Atlantic menhaden (adults and juveniles), Atlantic silversides

(adults), Bluefish (juveniles) and Spot (adults and juveniles) is listed as "abundant" through
December. Sheepshead, weakfish, Atlantic croaker, striped mullet and spot are species sought
after by recreational and/or commercial fishermen while stripped mullet, Atlantic menhaden and
Atlantic silversides are important forage species for Spanish mackerel, king mackerel and
bluefish which are federally managed species highly sought after by recreational fishermen. An
earlier start would also increase the likelihood of impacts to species such as Emerita sp. and
Donax, sp. which are nearshore/surf zone forage species.
According to the National Marine Fisheries Service (NMFS) the implementation of the
authorized construction window was instrumental in its concurrence with the EFH assessment.
Your proposed modification to work outside the approved construction window is more likely to
adversely affect EFH. Therefore, any change in the authorized construction window would
require submittal of a new or revised EFH assessment to NMFS and its concurrence.
By letter dated July 31, 2009, Mr. George House of Brooks, Pierce, McLendon, Humphrey and
Leonard, L.L.P. provided information regarding your modification request. Mr. House requested
that the modification request be "reconsidered on an expedited basis and immediately approved,"
citing "emergency circumstances." The subject letter characterizes the emergency circumstances
as erosion causing imminent danger to life, property, and the environment of Bald Head Island.
As evidence of this erosion, the letter cites information provided in the original modification
request, information supplied by Eric Olsen of Olsen Associates, Inc and photos showing
progressive erosion from March 2009 to present.
Based on the data provided and the existing shoreline conditions as evidenced during our recent
field inspection, the Corps does not concur with your determination that an emergency erosion
situation exists on Bald Head Island that warrants authorization of emergency beach fill activities
as you have requested. The beaches of Bald Head Island have not been subjected to any recent
storm-induced erosion. The recent erosion of West and South Beach has not exceeded the
expected beach erosion as described in the referenced EA. Additionally, until at least June of this
year, BHI had not alerted the Corps of any trends or information leading to the conclusion that
erosion was severe enough to require sand placement before November 15, 2009. No mention
was made in your modification request of any information, obtained or evaluated subsequent to
June of 2009 that led BHI to the sudden conclusion that erosion rates had exceeded that which
was expected. In addition, the erosion of portions of West and South Beach has exposed
previously installed sand bags that were constructed under a previous emergency beach erosion
event. These shore protection structures are still intact and functional and can provide the
necessary short term shore protection to portions of Bald Head Island until November of this
year. Additionally, neither of your submittals to us in support of a permit modification discusses
less drastic measures to protect the few structures currently threatened by erosion on BHI; we
continue to believe that other, less damaging alternatives may exist. Therefore, based on existing
shoreline conditions on Bald Head Island we do not concur that emergency conditions exist on
Bald Head Island that warrant beginning work earlier than the authorized start date of November
15`"
With regards to the Endangered Species Act (ESA), we have made our ESA effect
determinations based on the information you have provided, the field inspection of August 4,
2009, and prompt coordination with the Federal resource agencies. Our determinations are
provided in Table 1. These determinations are based on a review of the sea turtle nesting data
you have provided to date, missed nest information, the existence of suitable nesting habitat in
the project area found during our field inspection, and information relating to the relocation of
sea turtle nests. Specifically with regard to endangered sea turtles, the Corps finds that large
portions of the beach that you propose to nourish before November 15 (the typical end of nesting
turtle activity in this area) contain suitable habitat for nesting sea turtles, particularly in the area
of the Point and on that portion of South Beach east of the Bald Head Island Club. Nests in this
area, that otherwise may not have to be relocated, would need to be relocated in order to
accomplish your proposed work. Additionally, sea turtle nests laid within these areas that may
not be discovered run the risk of being buried by the proposed work. Records of nests on BHI
with known hatch dates but unknown lay dates suggest that some nests on the island may go
undiscovered when laid. Given that these potential effects of this action are neither wholly
beneficial, insignificant, or discountable, the Corps has determined that your proposal, as
currently described, may affect, and is likely to adversely affect, nesting sea turtles.
The Corps is required to furnish its effect determinations and a Biological Assessment (BA) to
the United Fish and Wildlife Service (USFWS) for its concurrence prior to authorizing any
activities that may affect federally protected species. Please note that our determination of "May
affect, likely to adversely affect" federally protected sea turtles requires formal consultation with
the USFWS. This consultation would require preparation of a biological assessment discussing
all potential mitigative efforts including detailed information on the current relocation program.
The BA should also include all available sea turtle nesting data, including occurrence of missed
nests, location and date of all nest relocation and rationale for relocation of each nest. This BA
would be provided to the USFWS for preparation of a biological opinion and if necessary, a take
statement.
Table 1. ESA Effect Determinations b the Co s of Engineers.
Species Determination
Right Whale, Finback Whale, Humpback
Whale, Sei Whale, and Sperm Whale. No affect.
West Indian Manatee May affect, not likely to adversely affect.
Piping Plover No affect.
Hawksbill Sea Turtle, Kemp's Ridley Sea
Turtle, and Leatherback Sea Turtle. May affect, likely to adversely affect.
Shortnose Sturgeon No affect.
Seabeach Amaranth No affect.
As stated in our July 27, 2009 letter, in making Clean Water Act permit decisions, the Corps
must ensure compliance with the Clean Water Act Section 404(b)(1) Guidelines (Guidelines)
codified at 40 CFR Part 230. These Guidelines require, among other things, that any permitted
action be the least environmentally damaging practicable alternative (LEDPA) to accomplish the
stated project purpose and that all appropriate and practicable steps to minimize impacts to the
aquatic ecosystem have been taken. The information provided to date has not documented that
the project as currently permitted, with all appropriate minimization measures in place, is not

practicable. Further, review of all available information indicates that the likelihood of adverse
impacts to the aquatic environment would increase with the implementation of the proposed
modified construction window. Accordingly, the Corps cannot, at this time, approve your
modification request.
Should you have any questions, please contact Mr. Dave Timpy, Wilmington Field Office,
Regulatory Division, at [phone].
Sincerely,
ci n
S. Kenneth Jolly
Chief, Regulatory Division
Copies Furnished:
Ms. Cyndi Karoly
Division of Environmental Management
N.C. Department of Environment
and Natural Resources, Wetlands Division
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604-2260
Mr. Doug Huggett
Division of Coastal Management
N.C. Department of Environment
and Natural Resources
400 Commerce Avenue
Morehead City, North Carolina 28557
Mr. Steve Everhart
Division of Coastal Management
N.C. Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Ms. Molly Ellwood
Southeastern Permit Coordinator
N.C. Wildlife Resources Commission
Habitat Conservation Program
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Dr. Matt Godfrey
N.C. Wildlife Resources Commission
217 Sleep Point Road
Gloucester, North Carolina 28528
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Howard Hall
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Ron Sechler
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
-6-
Mr. Pace Wilber
Supervisor, Atlantic Branch
Habitat Conservation Division
Post Office Box 12559
Charleston, South Carolina 28422-2559
Ms. Georgia Cranmore
Assistant Regional Administrator
for Protected Species
Southeast Regional Office
9721 Executive Center Drive North
St. Petersburgh, Florida 33702
Ms. Becky Fox
Wetlands Regulatory Section - Region IV
U.S. Environmental Protection Agency
1349 Firefly Road
Whittier, North Carolina 28789
Commanding Officer
United States Coast Guard
Marine Safety Unit Wilmington
1502 North 23rd Street
Wilmington, North Carolina 28405