20050963 Ver 1_US Dept Interior Comments_20050809

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United States Department of the Interior

FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726

July 29, 2005

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Mr. Henry Wicker
U. S. Anny Corps of Engineers
Wilmington Regulatory Field Office
P. O. Box 1890
Wilmington, North Carolina 28402-1890

Subject: Action ID #200500999, R. A. North Development, Inc., Cannonsgate at Bogue Sound
Subdivision, Carteret County, NC

Dear Mr. Wicker:

This letter provides the comments of the U. S. Fish and Wildlife Service (Service) on the subject
Public Notice (PN), dated July 1,2005. The applicant, R. A. North Development, Inc., has
applied for modifications to an existing Coastal Area Management Act (CAMA) Permit issued
initially in June 1988. The proposed work is being considered under Regional General Permit
# 198000291, a permit/processing agreement for work that has been approved pursuant to the
CAMA. The subject PN regards an application for a Department of the Anny (DA) permit to
reconfigure an existing marina, dredge access channels, and construct other amenities and
infrastructure. These comments are submitted in accordance with the Fish and Wildlife
Coordination Act (FWCA) (48 Stat. 401, as amended; 16 U.S.C. 661-667d). Comments related
to the FWCA are to be used in your detennination of compliance with 404(b)( 1) guidelines (40
CFR 230) and in your public interest review (33 CFR 320.4) in relation to the protection offish
and wildlife resources. Additional comments are provided regarding the District Engineer's
determination of project impacts pursuant to section 7 of the Endangered Species Act (ESA) of
1973, as amended (16 U.S.c. 1531-1543).

Proposed Action

The PN contains the Field Investigation Report (FIR), dated June 17,2005, of the North Carolina
Division of Coastal Management (NCDCM). This report discusses the project area, proposed
actions, and anticipated environmental impacts. The project area is a 287-acre tract on the
mainland between NC Highway 24 and Bogue Sound. Sikes Creek flow through the tract into
Sanders Creek (or bay). The sections of Sikes and Sanders Creeks adjacent to the project site are
designated as Primary Nursery Area (PNA) by the North Carolina Division of Marine Fisheries.
The waters of Bogue Sound have been designated as Outstanding Resource Waters (ORW) by
the North Carolina Division of Water Quality. The FIR states that no submerged aquatic
vegetation was noted during on-site visits.

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While the distinction between activities originally permitted and new proposals is not exactly
clear, the FIR and PN discuss several proposed actions. These activities include construction of
a wastewater treatment facility, four wastewater collection ponds, and creation of two "nature
ponds." An existing road crossing of a freshwater wetland would be reconfigured. A spoil basin
would be excavated in high ground. Three community observation piers would be constructed.
Piers 2 and 3 would be associated with Sikes Creek with Pier 3 located entirely over freshwater
wetlands.

The existing marina and access waterways would be modified in several ways. Two eight-foot-
wide, concrete walkways would be constructed around the marina basin. Two concrete
overlooks/plazas would be constructed within the 30-foot coastal shoreline buffer. A concrete
boat ramp would be constructed within the existing basin. The floating dock system within the
basin would be reconfigured, but the total number of slips (75) would be unchanged.

The applicant proposes to increase the depths within 600-foot-long the access canal (between the
basin and the shoreline) to depths between 7.5 and 9.0 feet at mean low water (MLW). The 500-
foot-long entrance channel (between the shoreline and the Atlantic Intracoastal Waterway)
would be dredged to create depths between 9.0 and 10.5 feet at ML W. Both waterways would
have a bottom width of 40 feet. Maintenance dredging would be conducted in the marina basin,
but no increase of the maximum depth of -7.5 feet at ML W is proposed. Approximately 13,500
cubic yards of material would be removed by hydraulic dredging. The FIR states that dredging
would "remain within the same footprint originally permitted." Spoil material would be pumped
to a disposal site excavated in high ground on the site.

Anticipated Impacts

The FIR notes that current plans represent modifications of a previously permitted and partially
constructed project. Most of the "types of impacts" discussed in the FIR have been previously
authorized. However, we believe that the subject PN should carefully consider all the listed
impacts discussed in the FIR.

Observation piers built over freshwater wetlands would shade vegetation. The FIR states that
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930 square feet (fn of freshwater, vegetated wetlands would be shaded.

Non-vegetated wetlands, or open water, would be impacted in three ways. First, 369,000 ft2, or
8.47 acres, would be dredged. Second, 2,480 fe would be filled to construct the boat ramp.
Third, 32,156 ft2 would be incorporated by the various docks and piers.

The redesigned subdivision would impact 25 acres of uplands. A portion of these uplands
represent Coastal Shoreline Areas of Environmental Concern (AEC). The AEC extends 75 feet
landward from the high water line in estuarine waters and 575 feet landward from the ORW of
Bogue Sound and Sanders Creek. Rules of the NCDCM allow building on only 25 percent of
the project area located within the AEC. Current plans state that built upon surface within the
75-foot AEC would be limited to 24.8% of the area. In addition, impervious surface, such as

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buildings, paved parking lots and roads, must cover no more than 30 percent ofthe project area
within the AEC. Sheet CP-2 states that impervious surface within the 75-foot AEC equals
30.44%, but the figure is given as 30.6% in the NCDCM permit application, Forn1 DCM-MP-3,
Item G. While the percent of impervious surface appears to slightly exceed current NCDCM
rules, the rule allow exceptions if the applicant can show the project design limits runoff in a
manner equivalent to the limit on coverage. The rules state that hard surfaces should be limited
to the smallest area necessary.

Federally Protected Species

The Service has reviewed available information on federa.11y-threatened or endangered species
known to occur in Carteret County. We have also reviewed information from the North Carolina
Natural Heritage Program (NCNHP) database which contains excellent data on the special status
species, both federal and state. This database can be accessed by topographic quadrangle (quad)
of the U. S. Geological Survey (USGS). Data from USGS quads provide the most project-
specific information on species which should be considered in permitting this project. The
project area is located in the Salter Path quad. Occurrence data of special status species within
these quads can be obtained on the internet at < httl1://www.ncnhp.org/Pa1!es/heritagedata.html
>.

Our review indicates that the only federally protected species likely to occur in the project area is
the West Indian manatee (TriclzcchllS lIIanatlls), a federally-endangered mammal. While there
are no current records within the Salter Path quad, the species has been reported from Carteret
County and there are occurrences records within other areas of Bogue Sound. The species has
been seen in marinas within North Carolina. The estuarine waters of the basin, access canal, and
entrance channel may be used by manatees that move along the Atlantic Coast during summer
months and are seasonal transients in North Carolina, primarily from June through October.
Manatees may occupy waters one to two meters (3.3 -6.6 feet) deep. The species moves
extensively when in North Carolina waters and past occurrence records cannot be used to
precisely detern1ine the likelihood that it will be presence at a particular construction site.

The proposed dredging may pose a risk to manatees. To protect manatees in North Carolina, the
Service developed guidelines entitled "Precautions for General Construction in Areas Which
May Be Used by the West Indian Manatee in North Carolina." These guidelines address all
types of in-water construction, except blasting, and should produce little, if any, additional
expense. The guidelines are intended mainly to ensure that construction personnel are informed
that manatees may occur in the work area, that work should cease if a manatee approaches the
work area, work should not resume until the manatee leaves the work area, and procedures for
reporting the death or injury of a manatee. These guidelines are available on our web site at <
http://nc-es.fws.1!ov/mammallmanatee guidelines.pdt>. The risk to manatees could be reduced
to an acceptable level by the implementation of the Service's guidelines. The risk would be
further reduced by perforn1ing the work during the period of November through May.

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With the inclusion of our manatee guidelines, the Service would concur with a determination by
the USCG that the proposed actions are not likely to adversely affect threatened or endangered
species under our jurisdiction or their designated critical habitat. The requirements of section 7
of the Endangered Species Act would be fulfilled. However, section 7 would need to be
reconsidered if: (I) new information reveals impacts of this identified action that may affect
listed species or critical habitat in a manner not previously considered; (2) this action is
subsequently modified in a manner which was not considered in this review; or, (3) a new
species is listed or critical habitat determined that may be affected by the identified action.

Servicc Conccrns and Rccommcndations

The Service supports stream crossing structures which maintain natural water flows and
hydraulic regimes without scouring, or impeding fish and wildlife passage. While the FIR states
that the existing culvert at the modified stream crossing would not be replaced, the Service
recommends that the existing crossing be reevaluated to ensure that fish and wildlife habitat
functions are maintained. If the crossing in question involves Sikes Creek, consideration should
be given to bridging this waterway. If a culvert is used, it should be of sufficient size to allow
normal surface water exchange between the wetlands above and below the culvert. The culvert
or pipe invert should be buried at least one foot below the natural streambed to promote the
passage of aquatic organisms. The culver should be situated so that no channel realignment or
widening is required. Widening of the stream channel at the inlet or outlet of structures usually
causes a decrease in water velocity. This produces sediment deposition that will require future
maintenance. Riprap should not be placed on the streambed.

The Service is concemed that piers/docks built too low over marsh areas will hann the
vegetation by blocking sunlight. Shading results in the loss of plant growth and vigor beneath
the dock structures. Project Sheet CP-12 shows the cross-section of a typical boardwalk on a
pier. The overall elevation seems divided into two zones, one below the water level and one
above the water level. The drawing notes a minimum elevation of three feet above the "marsh or
wetland." However, it is unclear whether this minimum represents overall elevation or one of
the two zones of elevation.

Structures over vegetated wetlands should be designed to prevent adverse shading impacts to
vegetation, substrate, and other clements of the aquatic environment. The design may include
elevating the structure sufficiently above the top of the plants to allow sunlight to enter from the
edges. Support for the sufficiency of the proposed elevation would include data on the
characteristic heights of dominant plant species to be covered. There should not be an
assumption that the minimum height requirement (three feet above the substrate) is sufficient to
minimize the adverse impacts which the state regulation (I5A NCAC 07H .0208(b)(6)(F)) seeks
to prevent. Shading can also be reduced by creating structures which allow the passage of
sunlight. The use of a grated surface or extruded metal decking. would allow sunlight to support
marsh vegetation. The Service recommends that the Coordinated Federal Position (CFP) specify
that all structures built over vegetated wetlands be elevated to a height, or designed in such a
manner, to allow sufficient sun to support the vegetation covered. This is consistent with Special

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Condition i of Wilmington District's Regional General Permit #197800056 for piers and docks
(effective date March 16, 2005) which requires docks and piers extending over wetlands to be
sufficiently elevated (a minimum of three feet) above the wetland substrate to prevent total
shading of vegetation, substrate, or other elements of the aquatic environment.

The Service is concerned that the extent of impervious surface adjacent to ORW of Bogue Sound
as well as other waters could produce runoff which would reduce water quality. The increase in
impervious surfaces from both roads and houses will increase the speed of runoff into the
remaining wetlands and small waterways. Small wetlands in their natural state absorb
significant amounts of rainfall. The Service recommends that the Coordinated Federal Position
(CFP) request a consideration of innovative materials to reduce the impervious surface created
by the project. For cxample, pervious landscape blocks could be uscd in areas where impervious
concrete or asphalt is currently proposed, such as the two concrete walkways around the marina
basin. Such blocks, also referred to as infiltration blocks or modular paving blocks, create a firm
surface but minimize the amount of impervious area, allow vegetation to grow, and allow
precipitation to infiltrate into the subsurface soil. The open portion of the blocks reduces runoff
volumes. Surface vegetation growing in the open portions will trap some sediment and nutrient
from surface runoff.

Shect CP-2 indicates that plans for the subdivision infrastructure and amenities have avoided
impacts to some wetland areas. Some wetlands have been designated as common open space.
However, the Service is concerned that some platted lots arc mostly wetlands. For example Lots
438 and 439 along Sander Creek (Bay) have little upland area. Lots 457 through 464 extend
across a wetland area. These lots are entirely within the 575-foot Coastal Shoreline adjacent to
ORW.

The FIR states that the applicant developed a declaration of protective covenants, restrictions,
and easements for the subdivision. The declaration prohibits individual piers on any lot located
within Cannonsgate. It is noted that once the declaration is recorded, the restrictions "would
limit the amount of public trust usurpation and potential impacts from boat prop-kicking of the
valuable PNA habitat within Sikes Creek and Bogue Sound."

While reducing the turbidity from prop-kicking is beneficial to aquatic resources, thcre do not
appear to be any subdivision-wide prohibitions on filling the same PNA wetlands for home
construction. The Service recommends that all jurisdictional wetlands that are not impacted for
the infrastructure development described in June 17,2005, FIR be protected by a conservation
casement and incorporated into the declaration of protective covenants and restrictions. The
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issue of wetland impacts by future home construction should be addressed at the inception of the
subdivision and not handled piecemeal by numerous applications for small area of wetland fill
by individual lot owners. There should also be a consideration of upland buffers to protect the
wetlands Sikes Creek, Sanders Creek, and Bogue Sound.

The conservation casement should contain all the prohibited and restrictive activities given in
Article II of the Corps' model conservation easement. The model easement can be seen along

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with the "District Preservation Process with Models" at <
http://www.saw.usace.army.mil/wet I ands/M i ti r!ati on/Documents/ conservati on%2 Oeasemen t%20
r8-03.ndf> revised in August 2003. The 11 restrictive activities include (Sections A-K)
measures to prevent the introduction of non-native plants (A); construction of paved surfaces or
utility poles (B); any cutting of trees, shrubs, or other vegetation (E); any change in topography
(H); certain changes to drainage patterns (I); and, the operation of mechanized vehicles (K).
These prohibited and restrictive activities should be part of the permit conditions and become
part of the property deed. There should be guidelines to limit maintenance programs within the
protected wetlands.

In summary, the Service finds that several means of avoiding and minimizing wetland impacts
require additional development and/or clarification. These include the potential for bridging
Sikes Creek, adequate elevation of structures over vegetated wetlands, the use of innovative
measures to reduce the creation of impervious surface, and the protection of wetlands from
piecemeal loss by future home construction. The CFP should request that the NCDCM ensure
that each of these measures have been fully evaluated and implemented to the maximum extent
possible on the 287-acre tract.

The Service appreciates the opportunity to comment on this PN. If you have questions regarding
these comments or wish to discuss the development of the coordinated federal position, please
contact Howard Hall at 919-856-4520, ext. 27 or bye-mail at < [e-mail] >. Please
provide this office with a copy of the coordinated federal position, if one is developed.

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Sincerely,

9~ [{JM

Pete Benjamin
Ecological Services Supervisor

cc:

Ronald Mikulak US EP A, Atlanta, GA
Ron Sechler, NMFS, Beaufort, NC
Mike Street, NC Division of Marine Fisheries, Morehead City, NC
Steve Everhart, NCWRC, Wilmington, NC
John Dorney, NC Division of Water Quality, Raleigh, NC
Ted Tyndall, NC Division of Coastal Management, Morehead City, NC