NAO-2013-0591

The District Commander has received a joint application for Federal and State permits as described below: 

APPLICANT
Joint Base Langley Eustis (JBLE)
Langley Air Force Base
125 Marby Avenue
Langley AFB, VA 23665

WATERWAY AND LOCATION OF THE PROPOSED WORK
The project is located in Back River a tributary to the Chesapeake Bay, at Langley Air Force Base, Hampton, Virginia.

PROPOSED WORK AND PURPOSE
The applicant proposes to replace an aging and structurally deficient wooden fueling pier with a concrete fuel pier, fender piles, and mooring dolphin that will be located approximately 175 feet (ft) south of the existing wooden pier. The combined length of the proposed concrete pier and dolphin will be approximately 857 feet (ft) and will include:
- A boat ramp
- An 800 ft long by 30 ft. wide access trestle
- A 57 ft. long by 50 ft. wide fueling pier structure, and
- One mooring dolphin located at the head of the pier

The project will include a combination of 65,000 cubic yards of maintenance and new work dredging, including a 450 ft turning basin to the proposed fuel pier will be also constructed as part of the project. Dredged material will be transported to the Norfolk Ocean Disposal Site (NODS), located approximately 17 miles east of Cape Henry and is about 50 square nautical miles in size (40 CFR Part 228.15).

In addition to the required Department of the Army permit, the applicant must obtain a Virginia Water Protection Permit/401 certification from the Virginia Department of Environmental Quality assuring that applicable laws and regulations pertaining to water quality are not violated and may need a permit from the Hampton Wetlands Board.  Project drawings are attached.

AUTHORITY
Permits are required pursuant to 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.

A Section 103 permit for ocean transport and placement is required in accordance with part 227 of the Marine Protection, Research, and Sanctuaries Act (MPRSA).

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 classification, 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).

Applications and authorizations for Dredged Material Permits under Section 103 of the Act for the transportation of dredged material for the purpose of dumping it in ocean waters will be evaluated by the U.S. Army Corps of Engineers in accordance with the criteria set forth in part 227 and processed in accordance with 33 CFR 209.120 with special attention to § 209.120(g)(17) (Discharge of Dredged or Fill Material in Navigable Waters or Dumping of Dredged Material in Ocean Waters) and 33 CFR 209.145, now renumbered as 33 CFR 320 to 324, and 33 CFR 335 for Civil Works projects.

This public notice satisfies the requirements of Section 225.2 of the MPRSA. Dredged materials proposed for transport for the purpose of discharge in open waters must be evaluated and permitted by the U.S. Army Corps of Engineers in accordance with part 227 of MPRSA and processed in accordance with 33 CFR 320-324.

The NODS has previously been used by the U.S. Navy in August 1993. Approximately 51,000 cubic yards of dredged material from the Naval Supply Center Cheatham Annex and 475,000 cubic yards of dredged material from the Naval Weapons Station Yorktown were placed at the site. The Mid-Town Tunnel Project commenced dredged material placement operations at NODS in October of 2013 and is expected to place approximately 2 million cubic yards at the site over an estimated 18-month period.

In May 2014, EPA concurred with the Corps regarding the authorization to place about 333,000 cubic yards of dredged material from the James River approach channel and harbor at Fort Eustis. Effects from the authorized discharges that have been made in the placement area have been minimal and consistent with the discharge alluvium.

Sediments proposed for maintenance dredging to provide safe navigation for vessels utilizing the channel consists primarily of alluvium material. Grain size of the dredged material is predominantly silt and clay material with a small fraction of embedded sands. The dredged material proposed for placement at NODS does not meet the testing exclusionary criteria set forth under 40 CFR 227.13(b). Subsequent dredged material testing detected the presence of ammonia as nitrogen, metals, polycyclic aromatic hydrocarbons (PAHs), polychlorinated biphenyls (PCBs), chlorinated pesticides, pesticides, and dioxins/furans at the site. Dredged material was tested for liquid phase, suspended particulate phase, and solid phases using criteria and procedures developed by the Administrator of the U.S. Environmental Protection Agency (EPA) in accordance with 40 CFR 227.13(c) and 227.32.

Evaluation of the liquid phase has determined the material complies with the Limiting Permissible Concentration (LPC) and is in compliance with 40 CFR 227.13(c)(1) and 227.27(a)(1). Evaluation of the liquid and suspended particulate phase has determined the material complies with the LPC and is in compliance with 40 CFR 22.13(c)(2) and 227.27(b).

Evaluation of the solid phase toxicity and bioaccumulation has determined the material complies with the LPC for benthic toxicity and found no potential for undesirable bioaccumulation effects and therefore is in compliance with 40 CFR 227.13(c)(3). Accordingly, the proposed dredged material from the DLA Fuel Pier project meets the Ocean Disposal Criteria (40 CFR 227).

The National Marine Fisheries Service (NMFS) provided a biological opinion dated October 16, 2012 (F/NER/2012/01586) regarding use of the NODS.

“Because any effects to whales are extremely unlikely to occur, all effects to whales are discountable. As such, we have determined that the proposed action is not likely to adversely affect right, humpback or fin whales. These species will not be considered further in this Opinion.”

“For purposes of this consultation, we consider that sediment that is suitable for ocean disposal would not be toxic to marine life and would not be likely to cause adverse effects to sea turtles, Atlantic sturgeon or their prey. Because the material to be disposed will be tested to ensure it is not acutely toxic and will not increase the risk of bioaccumulation of toxins or contaminants in any marine species, effects to sea turtles and Atlantic sturgeon will be insignificant and discountable.”

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 pursuant to the National Environmental Policy Act. 

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.

Preliminary review indicates that: (1) no environmental impact statement will be required; (2) after conducting consultation with National Marine Fisheries Service (NMFS), no listed/proposed/candidate species and/or designated/proposed critical habitat under the Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended) are likely to be adversely affected, and the NMFS has concurred with this determination in a consultation letter dated March 25, 2014; and (3) while the project is located within the Langley Field Historic District and the district has been determined eligible for the National Register of Historic Places the proposed actions will not affect the qualities that make the district significant.

For this reason we have determined that there will be no adverse effect on historic properties and the Virginia Department of Historic Resources has concurred with our determination in a letter dated December 19, 2013.  Additional information might change any of these findings.

For compliance with the Coastal Zone Management Act of 1972, as amended for projects located in Tidewater, 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 Coastal Zone Management Program (VCP) and obtain concurrence from the Department of Environmental Quality (DEQ), Office of Environmental Impact Review (OEIR).

The applicant has requested a Coastal Consistency Determination (CCD), but we have not received the CCD from the applicant prior to publication of this public notice. It is the applicant’s responsibility to submit a consistency certification to the Office of Environmental Impact Review 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 here:
 http://www.deq.state.va.us/Programs/EnvironmentalImpactReview/FederalConsistencyReviews.aspx#cert.  

For more information or to obtain a list of the enforceable policies of the VCP, contact the Department of Environmental Quality, Office of Environmental Impact Review at (804) 698-4330 or e-mail: ellie.irons@deq.virginia.gov or john.fisher@deq.virginia.gov.

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). The Back River project site contains the following Essential Fish Habitat (EFH): 

The habitat which this project would affect consists primarily of silts and clays.  The proposed project is described in Proposed Work and Purpose, above. The habitat characteristics of the action area are sub-optimal for foraging (i.e., no SAV and limited benthic invertebrates). EFH species are not likely to use the action area as foraging grounds (highly utilized pier where ships offload), and therefore, the alteration of the habitat as a result of sediment removal is not likely to remove critical amounts of prey resources for EFH species. 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, little or no change in water temperature or salinity caused by the proposed work; and the absence of vegetated wetlands, submerged aquatic vegetation, and anadromous fish spawning habitat.

The NODS includes the following EFH:

However, given the designation and approval by EPA of this site as a dedicated long term ocean placement site, and given the testing, analysis, and placement conditions; our EFH assessment of the NODS site leads us to a preliminary determination that use of the NODS will not have a substantial adverse effect on EFH and therefore expanded EFH consultation is also not required for the NODS.

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 by email or in writing, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WR-R (Evans)), 803 Front Street, Norfolk, Virginia  23510-1096, and should be received by the close of business on July 9, 2014.

PRIVACY & 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 John Evans at john.d.evans@usace.army.mil or call 757-201-7794. 

FOR THE DISTRICT COMMANDER
John Evans
Western Virginia Regulatory Section