Friday, February 3, 2023

State advances new regulations that would restrict popular Carolina Beach wheelchair access mat

The president of the nonprofit responsible for the mat took issue with a photograph taken by a state employee showing potential issues; he said the photo was taken 'strategically,' calling it a 'bullshit move.'

The state notified the nonprofit Ocean Cure that it must remove its wheelchair beach access matte because it threatened sea turtles and shorebirds. (Port City Daily photo/Courtesy Kevin Murphy)
The vote came less than seven weeks after the state notified nonprofit Ocean Cure that it must remove its wheelchair beach access matte because it threatened sea turtles and shorebirds. (Port City Daily photo/Courtesy Kevin Murphy)

CAROLINA BEACH — A nonprofit that maintains a popular wheelchair access beach mat in Carolina Beach must now seek a variance with the state’s Coastal Resources Commission (CRC) to lay its mat near the crowded Boardwalk next summer, as it has for the previous three summers with the town’s support.

But a variance for Ocean Cure faces a steep uphill battle due to concerns expressed by the U.S. Fish and Wildlife Service (FWS) and by comments from CRC commissioners and Division of Coastal Management Director (DCM) Braxton Davis during a quarterly CRC business meeting last week.

Commissioners voted unanimously to advance certain amendments to its beach accessway law, changes that would permit only government entities to lay small mats on public beach accessways. The vote came days after Ocean Cure went public again with its concerns about the state’s demand to remove its 3,000-square-foot wheelchair mat (it first went public with WECT in mid-August). The vote moved the amendments to a future public hearing upon the advice of Davis, whose staff considers beach mats to meet the state’s definition of a “development.”

RELATED: Inside state’s order to remove popular Carolina Beach wheelchair access mat

In response to the nonprofit’s latest public concerns, a DCM spokesperson said Tuesday that staff advised Ocean Cure and town officials for two consecutive years to work directly with U.S. Fish and Wildlife to address sea turtle concerns because human interactions with the animals “are regulated by the federal Endangered Species Act and do not directly lie within the State’s jurisdiction.” But the spokesperson, Christy Simmons, then said that over the two-year period, DCM staff advised Ocean Cure of the “need to apply for a Coastal Area Management Act (CAMA) permit” — permits that lie fully within the state’s jurisdiction.

“Staff explained to Ocean Cure that because the structure does not conform with existing regulations established by the [CRC], the application would likely be denied, but they could then seek a variance from the CRC,” she said. “The CRC has authority to allow a project that is inconsistent with existing state rules under certain conditions.”

Contradictory accounts

According to Simmons, the DCM has “tried to work with Ocean Cure and the Town to find a long-term solution, hopefully by the start of 2021.” But Ocean Cure President Kevin Murphy denied this was the case, saying the town had forwarded emails from DCM in May 2019 and May 2020, but he first received direct communication from state agency via a Notice of Regulatory Requirements on July 27, 2020. During these communications, according to Murphy, the DCM told the town a permit would most likely be denied.

“I don’t think that’s ‘working’ when you say, ‘Apply for a permit but your permit’s going to be denied,'” Murphy said.

Simmons also emphasized DCM had not taken any enforcement action or issued a formal Notice of Violation letter, although the July letter explicitly directed Murphy and Town Manager Bruce Oakley to remove the mat by September 8 or be subjected to “civil and/or criminal penalties.”

In response to Murphy’s earlier claim that a DCM employee “is not happy we have [the mat] down and takes pictures of it when it rains, complaining that it is underwater,” Simmons suggested this had not occurred.

“The division does not have the resources to activate staff to sites during rain events for the purpose of taking photos, nor does it understand why anyone would do so, particularly if the mat is permeable and on a beach,” Simmons said.

Murphy, who confirmed the employee was DCM Wilmington District Manager Tara MacPherson, did not hold back in his response.

“That’s complete bull,” Murphy said. “That was a strategic photo. That was a bullshit move, and [Simmons’ statement] is a lie.”

Murphy believes MacPherson was upset by the town’s support of the mat in the face of unclear direction from the FWS and DCM, and wanted to show the mat “in a bad light.”

“The town would say, ‘We don’t have direction, keep it down until we do, or they tell us we have to pull it up,'” Murphy said.

Murphy’s view is that MacPherson purposefully visited the beach immediately after a big storm had passed through the region, with the hope of showing the mat under the high tide line. MacPherson inspected the site on June 9, 2020, alongside Town Planner Miles Murphy, according to the July letter, with the purpose of investigating the matting within an Ocean Erodible Area of Environmental Concern (AEC). If she had planned the visit before she knew of the storm, Murphy believes Miles would’ve given him a heads up.

“That was strategic — she’s pissed that the town’s position is basically ‘Eff you, we’re keeping it down.’ … And then of course there were no more photos; she didn’t come back, because we had a pretty dry summer until recently,” Murphy said.

Simmons made clear that Davis, the division’s director, never had any direct communications with Murphy or with any town officials. But according to Murphy, a DCM compliance coordinator named Roy Brownlow, who sent the July letter, conveyed to him during a recent conversation that DCM’s director supported the mat.

“What Brownlow told me was that he and Davis are supportive of the mat, but that we just have to find the middle ground,” according to Murphy. “They want it down, but conveyed that FWS probably would not allow what we all want … He said FWS is not going to do this, but go for it. Apply for the permit, but they’re probably going to deny it.”

Ed Parvin, an assistant town manager at Carolina Beach who was the interim town manager before Oakley was hired in January, said the town supports the matting.

“Our locals and visitors are very supportive of the program,” Parvin said. “Knowing this our goal will be to work with CAMA officials, our local and state representatives, and Ocean Cure to find a solution to this issue.  I’m not sure what that looks like now, but hopefully we can find a win/win for all.”

The Coastal Resources Commission meeting

At the CRC meeting, DCM local field officer Heather Coats presented pictures of beach mats at Nags Head, left, and Ocean Isle. She said the Ocean Isle picture showed a 'false crawl' — tracks of a sea turtle that turned back when she reached the mat. (Port City Daily photo/Courtesy CRC)
At the CRC meeting, DCM local field officer Heather Coats presented pictures of beach mats at Nags Head, left, and Ocean Isle. She said the Ocean Isle picture showed a ‘false crawl’ — tracks of a sea turtle that turned back when she reached the mat. (Port City Daily photo/Courtesy CRC)

During last week’s CRC meeting, Davis told commissioners, “This is a very challenging issue because you’ve got extremely positive and beneficial goals of increasing handicapped access … and endangered species protection.”

Local field officer Heather Coats told commissioners that state and federal wildlife agents had “informally indicated that they do not have concerns about the impacts of limited uses of beach matting,” and commissioners voted to advance a rule that would allow government bodies to use mats on public beach accessways that are no wider than 6 feet and no farther than six feet beyond the dune line.

Davis said it was his staff’s position that beach matting is considered a ‘development’ by CAMA, which defines development as “any activity within an AEC that involves, requires, or consists of the construction or enlargement of a structure.”

“Within that definition, we felt like this required a permit,” Davis said, noting that South Carolina recently required similar permits in response to an increase of mats popping up along its own coastline.

Commissioner Doug Medlin, mayor of popular beach destination Surf City on Topsail Island, said handicapped residents in his town with properties along the shoreline had recently started using the mats to access the beach.

“What are we going to do about those?” Medlin asked.

Davis confirmed those requests would be “nonconforming” to the new rule if it passes.

Commissioner Trace Cooper, mayor of Atlantic Beach, said his own town — like most others along the North Carolina coast — provides other options for physically disabled people to access the beach, like renting out beach wheelchairs.

“I don’t think we’re excluding everyone who can’t install their own mat from getting to the beach,” he said, before moving for the commission to move forward with the proposed rule.

Chairwoman Renee Cahoon said her town also rents out beach wheelchairs, along with offering a service to pick people up, drive them to the beach, and return them when they are ready. According to Cahoon, such services suffice.

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