May 2, 2022
CENAO-WRR
NAO-1988-00819
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
Steve Ballard
Haversham Close, LLC
2393 Haversham Close
Virginia Beach, Virginia 23454
PROJECT LOCATION: The project is located near 2385, 2389, 2393 and 2397 Haversham Close, Virginia Beach, Virginia.
PROJECT SIZE: The dredge footprint is 0.927 acres (basin) and 0.368 acres (sand bar channel).
NEAREST WATERWAY: Dey Cove a tributary of Broad Bay
LATITUDE AND LONGITUDE: 36.8953, -76.0419
PROJECT DESCRIPTION AND PURPOSE: To gain water access for four properties, this project includes new and maintenance dredging, by mechanical means, within a basin in addition to dredging a channel through a sandbar. The sandbar is migrating southward and is cutting off access for 25 properties along Dey Cove Drive, Godfrey Lane, and Haversham Close. New dredging will include 1,443 cubic yards (5,765 square feet) of mudflats, 3,781 cubic yards (45,623 square feet) of sand/subaqueous bottom, and maintenance dredging 672 cubic yards (5,200 square feet) of subaqueous bottom. The basin will be dredged to -4.5' MLW to -6.5’ MLW, and the sand bar dredged to -6.5' MLW. Dredge spoils would be loaded into hopper barges and taken to Crab Creek for transfer to sealed dump trucks for transport to Whitehurst Borrow Pit Dredged Material Disposal Area. Maintenance dredging would occur on an as needed basis for the length of the permit, with 3 dredge cycles anticipated.
AVOIDANCE AND MINIMIZATION: The dredging amount is the minimum necessary to meet navigational safety.
COMPENSATORY MITIGATION: No mitigation is proposed for dredging impacts.
In addition, the applicant must obtain an Individual Section 401 Water Quality Certification or waiver from the Virginia Department of Environmental Quality (DEQ) assuring that applicable laws and regulations pertaining to water quality are not violated.
The applicant must obtain a permit from the Virginia Beach Wetlands Board.
A copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website (https://webapps.mrc.virginia.gov/public/habitat/additionaldocs.php?id=20220602).
AUTHORITY:
(X) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).
( ) Sections 401 and 404 of the Clean Water Act (Public Law 95-217) and Title 62.1 of the Code of Virginia.
( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).
FEDERAL EVALUATION OF APPLICATION: The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. The decision will reflect the national concern for both protection and utilization of important resources. The benefits which reasonably may be expected from the proposal must be balanced against its reasonably foreseeable detriments. All of the proposal's relevant factors will be considered, including conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people. The Environmental Protection Agency's "Guidelines for Specification of Disposal Sites for Dredged or Fill Material" will also be applied (Section 404(b)(1) of the Clean Water Act).
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 the direct, indirect, and cumulative impacts of this proposed activity. Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act. Preliminary review of the application indicates that no EIS will be required.
Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. Anyone may request a public hearing to consider this permit application by writing to the District Commander within 30 days of the date of this notice, stating specific reasons for holding the public hearing. The District Commander will then decide if a hearing should be held.
ENDANGERED SPECIES: after conducting the Norfolk District Endangered Species Act (ESA) Project Review Process, the Corps has made the preliminary determination that:
There may be an effect to listed/proposed/candidate species and/or designated/proposed critical habitat under the ESA of 1973. The IPaC Official Species List and Species Conclusion Table are attached for review and comment by the FWS and the NMFS.
Additional information might change any of these findings.
HISTORIC AND CULTURAL RESOURCES:
No known Historic Resources eligible for inclusion or included in the National Register of Historic Places (NRHP) are in or near the Corps permit area or would likely be affected by the proposal.
Additional information may change any of these findings.
ESSENTIAL FISH HABITAT: 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 NMFS on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH).
Dey Cove contains EFH (Grid # 94) for the adult, juvenile adult, larvae, and/or egg life stages of 16 species including: red hake (Urophycis chuss), Atlantic herring (Clupea harengus), scup (Stenotomus chrysops), Atlantic sharpnose shark (Rhizoprionodon terraenovae), sand tiger shark (Caracharias taurus), butterfish (Peprilus triacanthus), windowpane flounder (Scopthalmus aquosus), bluefish (Pomatomus saltatrix), dusky shark (Charcharinus obscurus), black sea bass (Centropristis striata), summer flounder (Paralichthys dentatus), red drum (Sciaenops ocellatus), sandbar shark (Carcharhinus plumbeus), cobia (Rachycentron canadum), king mackerel (Scomberomorus cavalla), Atlantic Spanish mackerel (Scomberomorus maculatus). The habitat which this project would affect consists of mud flats, sand flats, and subaqueous bottom. No Submerged Aquatic Vegetation is located within the project location. The proposed project is described in Proposed Work and Purpose, above. The project will result in very minor, short-term turbidity. The work will disturb bottom sediments and may cause a temporary increase in suspended sediment in the action area. Using available information, we expect the work to produce total suspended sediment (TSS) concentrations of approximately 5.0 to 10.0 mg/L within approximately 300 feet of the action area. The small resulting sediment plume is expected to settle out of the water column within a few hours. Studies of the effects of turbid water on fish suggest that concentrations of suspended sediment can reach thousands of milligrams per liter before an acute toxic reaction is expected (Burton 1993). The TSS levels expected for this project (5.0 to 10.0 mg/L) are below those shown to have adverse effect on fish (580.0 mg/L for the most sensitive species, with 1,000.0 mg/L more typical; see summary of scientific literature in Burton 1993) and benthic communities (390.0 mg/L (EPA 1986)). Our assessment of the project leads us to a preliminary determination that it will not have a substantial adverse effect on EFH and therefore expanded EFH consultation is not required. Our rationale for this preliminary determination is based on the expected short-term nature of the direct impacts/minimal increases in turbidity/changes in water temperature or salinity caused by the proposed work/the absence of vegetated wetlands, submerged aquatic vegetation, and anadromous fish spawning habitat/ existing poor water quality/unsuitable substrate. Based on comments from the National Marine Fisheries Service in response to this public notice, further EFH consultation may be necessary.
VIRGINIA’S COASTAL ZONE MANAGEMENT PROGRAM: For compliance with the Coastal Zone Management Act of 1972, as amended for projects located in Virginia’s Coastal Zone, the applicant must certify that federally licensed or permitted activities affecting Virginia's coastal uses or resources will be conducted in a manner consistent with the Virginia’s Coastal Zone Management Program (Virginia CZM Program), and obtain concurrence from the Department of Environmental Quality (DEQ), Office of Environmental Impact Review (OEIR). It is the applicant’s responsibility to submit a consistency certification to the OEIR for concurrence or objection, and proof of concurrence must be submitted to the Corps prior to final permit issuance. A template federal consistency certification can be found in the Federal Consistency Manual here: https://www.deq.virginia.gov/permits-regulations/environmental-impact-review/federal-consistency . For more information or to obtain a list of the enforceable policies of the Virginia CZM Program, contact the DEQ-OEIR at (804) 659-1915 or e-mail: bettina.rayfield@deq.virginia.gov.
The applicant has not submitted concurrence.
VIRGINIA’S SECTION 401 WATER QUALITY CERTIFICATION PROGRAM: The applicant must obtain, from the Virginia DEQ, a Clean Water Act Section 401 Water Quality Certification for any federal license or permit that authorizes an activity that may result in a discharge into waters of the U.S. (40 CFR Part 121). As the Certifying Authority, the Virginia DEQ may grant, grant with conditions, or deny a certification request. Alternatively, the Virginia DEQ may waive, expressly or implicitly, its authority to act on a certification request. In either case, a written notice of waiver from DEQ (expressly waived) or from the Corps (implicitly waived), satisfies the project proponent’s requirement to obtain certification.
Pursuant to 33 CFR 325.2(b)(1)(i), this Public Notice serves as the Corps’ CWA § 401(a)(2) notification to the Administrator of the Environmental Protection Agency (EPA). Pursuant to 40 CFR 121.11-13, the EPA shall notify the Corps, the Virginia DEQ, and the applicant, within 30 days of receipt of the application and certification, if the Regional Administrator determines that the proposed discharge may affect the quality of the waters of any neighboring jurisdiction.
COMMENT PERIOD: Comments on this project should be in writing and can be sent by either email to sara.e.bahnson@usace.army.mil, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN: CENAO-WRR), 803 Front Street, Norfolk, VA 23510-1011, and should be received by the close of business on June 1, 2022.
PRIVACY AND CONFIDENTIALITY: Comments and information, including the identity of the submitter, submitted in response to this Public Notice may be disclosed, reproduced, and distributed at the discretion of the U.S. Army Corps of Engineers. Information that is submitted in connection with this Public Notice cannot be maintained as confidential by the U.S. Army Corps of Engineers. Submissions should not include any information that the submitter seeks to preserve as confidential.
If you have any questions about this project or the permit process, contact
Ms. Sara E. Bahnson at sara.e.bahnson@usace.army.mil or 757-201-7182.
Attachments:
Project Drawings
USFWS Office Species List
Species Conclusion Table