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CENAO-WRR NAO-2015-01443

Posted: 3/7/2017

Expiration date: 4/6/2017


The District Engineer received a prospectus to establish a tidal wetland compensatory mitigation site for Federal and State permits as described below:


Mr. Thomas Tye

Chesapeake Land Development, LLC

6062 Indian River Road, Suite 104

Virginia Beach, Virginia 23464 

WATERWAY AND LOCATION OF THE PROPOSED WORK: The proposed mitigation site is located on approximately 29 acres of previously timbered land that is now dominated by old field successional vegetation, emergent and forested non-tidal wetlands, and tidal marshes. The site is located on New Mill Creek, a tributary to the Southern Branch of the Elizabeth River in Chesapeake, Virginia.

PROPOSED WORK AND PURPOSE:  The sponsor proposes to establish, design, construct, and operate a compensatory tidal wetland mitigation site to be known as New Mill Creek Tidal Mitigation Bank.The purpose of the mitigation project is to provide self-sustaining off-site compensatory mitigation for projects that result in unavoidable impacts to wetlands in the Lower James River Drainage Basin.   

The Sponsor plans to establish approximately 10.68 acres of tidal wetlands by converting 6.64 acres of existing upland to tidal wetlands and converting 4.18 acres of Phragmites dominated non-tidal wetlands to tidal wetlands. The Sponsor proposes to compensate all impacts to non-tidal wetlands by purchasing credits from an approved non-tidal wetland mitigation bank.  

The sponsor proposed, for purposes of Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act, that the geographic service area of this mitigation site would include the National Watershed Boundary Dataset Hydrologic Unit Codes 02080208 and portions of 02080206.  

Oversight of this mitigation site would be by an existing group of federal and state agency representatives. This interagency oversight group is known as the Interagency Review Team (IRT).  The Norfolk District of the U.S. Army Corps of Engineers and the Virginia Department of Environmental Quality chair the IRT.   

This mitigation site may be one of a number of practicable options available to applicants to compensate for unavoidable wetland impacts associated with permits issued under the authority of Section 404 and 401 of the Clean Water Act (Public Law 95-217) in Virginia.  

The actual approval of the use of this mitigation site for a specific project is the decision of the Corps pursuant to Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act and/or by the Department of Environmental Quality pursuant to Section 401 of the Clean Water Act and Title 62.1 of the Code of Virginia.  The Corps and the Department of Environmental Quality provide no guarantee that any particular individual or general permit will be granted authorization to use this mitigation site to compensate for unavoidable wetland impacts associated with a proposed permit. Authorization by the Virginia Marine Resources Commission may also be required for its use for specific projects.  

AUTHORITY:  Issuance of a public notice regarding proposed mitigation sites is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 325 and 332).  

FEDERAL EVALUATION OF PROPOSAL:  The Corps of Engineers is soliciting comments from the public; Federal, state, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate this proposed mitigation site.  This may serve as notice for any pending permit actions necessary for mitigation site construction that may result in impacts to Waters of the United States including wetlands.  The Corps of Engineers in evaluating this proposal will consider any comments received.  Comments are used to assess impacts on endangered species, historic properties, water quality, conservation, economics, aesthetics, general environmental concerns, wetlands, fish and wildlife values, flood hazards, flood plain values, land use classification, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, and consideration of property ownership.   

Preliminary review indicates that:  (1) no environmental impact statement would be required; (2) after conducting the NAO ESA Project Review Process, there may be an affect to listed species under the Endangered Species Act of 1973 and the Official Species List and Species Conclusion Table is attached for review and comment by Fish and Wildlife Service; and (3) no known properties eligible for inclusion or included in the National Register of Historic Places are in or near the permit area, or would likely be affected by the proposal. Additional information might change any of these findings.  

The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), requires all Federal agencies to consult with the National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH).   New Mill Creek/Southern Branch Elizabeth River do not contain Essential Fish Habitat (EFH).  Our assessment of the project leads us to a preliminary determination that it will not have a substantial adverse effect on EFH. Our rationale for this preliminary determination is based on no EFH habitat being present. Based on comments from the National Marine Fisheries Service in response to this public notice, further EFH consultation may be necessary. 

COMMENT PERIOD:  Comments on this project should be made in writing, addressed to the Norfolk District, Corps of Engineers- (ATTN:  CENAO-WRR), 803 Front Street, Norfolk, Virginia  23510-1096, Audrey Cotnoir, USACE Great Bridge Field Office, 2509 Reservation Road, Chesapeake, Virginia 23322 and should be received by the close of business on April 6, 2017. The Prospectus and Drawings can be viewed at https://ribits.usace.army.mil/ribits_apex/f?p=107:3:21744897504522::NO:RP:P3_BANK_ID:4536 

If you have any questions about this mitigation site, please contact:  

Audrey Cotnoir, by telephone at 757.549.8819 or by email at audrey.l.cotnoir@usace.army.mil

Chesapeake Elizabeth River mitigation bank New Mill Creek