June 22, 2021
FEDERAL PUBLIC NOTICE
The District Commander has received a joint application for Federal and State permits as described below:
Mr. Frederick T. Langston
Pamunkey Indian Tribal Gaming Authority
1054 Pocahontas Trail
Pamunkey Indian Reservation
King William, Virginia 23086
PROJECT LOCATION: 200 Park Avenue in Norfolk, Virginia.
PROJECT SIZE: Approximately 11.5 acres
NEAREST WATERWAY: Eastern Branch, Elizabeth River
LATITUDE AND LONGITUDE: LAT 36.841265°, LONG -76.277495°
PROJECT DESCRIPTION AND PURPOSE: The applicant wants to stabilize approximately 2,044 feet of shoreline by new construction of living shoreline (1,350 linear feet) and bulkhead (694 linear feet). The Living Shoreline (LS) would be created using armor stone sills and intertidal vegetation; and would largely be constructed from existing uplands. Aquatic resources that would be impacted by LS construction include: 150 ft² (0.0034 acres) of non-tidal wetlands, 4,300 ft² (0.1 acres) of tidal wetlands, 14,100 ft² (0.32 acres) of unvegetated intertidal waters (broken concrete/rock, silt), and 5,700 ft² (0.13 acres) of unvegetated subtidal waters. The new bulkhead and coastal berm (extension of the Elizabeth River Trail) would result in the loss of 1,950 ft² (0.045 acres) of non-tidal wetlands, 3,580 ft² (0.082 acres) of tidal wetlands, 4,390 ft² (0.1 acres) of unvegetated intertidal waters (broken concrete/rock, silt), and 10,700 ft² (0.25 acres) of unvegetated subtidal waters.
Additionally, the applicant wants to mechanically dredge approximately 26,215 cubic yards of material from an approximately 141,770 ft² (3.25 acres) area. Current depths vary from around -3 feet (relative to NAVD88) in vicinity of the old pile-supported wharf to up to -15 feet around the two existing primary wharves that protrude into the river. The area currently covered by the old wharf (28,200 ft² (0.65 acres)) and the majority of the central old fill peninsula (26,300 ft² (0.6 acres)) would be dredged to a depth of -8 feet, and the remainder of the dredged area would be dredged to a depth of -17 feet. The dredging would result in direct impacts to 1,370 ft² (0.03 acres) of tidal wetlands, 5,100 ft² (0.12 acres) of unvegetated intertidal waters (broken concrete/rock, silt), and 135,300 ft² (3.1 acres) of unvegetated subtidal waters. The dredging is considered to be “new” although the project area has been historically manipulated for over a century for railroad, shipment, and other maritime usage. The Elizabeth River federal channel, which has a designed project depth of -25 feet and width of 500 feet, is located south of this proposed project. The applicant proposes to dispose of dredged material by placement in the Craney Island Dredged Material Management Area (CIDMMA). Prior to dredging, the applicant will collect and analyze a series of borings to characterize the bottom sediments and develop a material management and disposal plan.
The applicant proposes to install 1,550 linear feet of floating concrete docks with boat slips for 35 to 50 vessels depending on how many larger yachts are present along the marginal, deep-water berths that would be able to accommodate vessels up to 250’ in length. This modern docking facility would serve local boating guests as well as transient visitors to the new proposed HeadWaters Resort Casino and Harbor Park area. The concrete floating docks are to provide stability for larger vessels and to provide an added level of wave and wake protection to the LS. The proposed dredging depths and dock layout will dictate the berthing locations for different-sized watercraft. All of the concrete docks would be moored in place using 36” steel pipe piles and high-capacity roller guides. Three (3) access points are identified with ADA accessible gangways that are 6 feet by 75 feet, 6 feet by 80 feet, and 6 feet by 90 feet.
Lastly, an existing, single 48” stormwater outfall to the river would be replaced by two (2) new 48” stormwater outfalls that would be each have self-regulating tide check valves. The proposed HeadWaters Resort Casino development seeks to reduce impervious surface and increase green space, thereby improving water quality of runoff funneled to these outfalls.
The stated project objectives are to remove safety hazards, stabilize the existing shoreline, improve navigation, flood control, coastal resiliency, and improve public access to the proposed HeadWaters Resort Casino and Harbor Park area.
Our office is currently evaluating the demolition of the condemned wharf, platforms, and pilings in the western half of the current project area for verification under Nationwide Permit 03 for the removal of previously authorized structures or fills from navigable waters.
AVOIDANCE AND MINIMIZATION: The applicant provided a general discussion of other previous conceptual plans for redevelopment of the project area, some of which proposed placement of 50,000 ft² (1.1 acres) to 70,000 ft² (1.6 acres) of fill into the river, but they did not think these plans fully utilized connections to the waterway. The applicant considered other project elements to avoid and minimize impacts to the aquatic environment:
“In developing a plan that minimized encroachment into the river, it was also necessary to reduce and eliminate site wide programing elements so the overall footprint of the new venue could be decreased. The number of hotel rooms was reduced from 500 to 300, casino square footage was reduced from 125,000 square feet to 80,000 square feet, two main drop offs were consolidated into one large drop off, outdoor free-standing food and beverage space and retail space was deleted from the program, five initial restaurant venues were reduced to 4 and there was a slight reduction in meeting space. These reductions and deletions produced the minimum footprint necessary to maintain the character of the new casino resort, while limiting the encroachment into the river.”
Additionally, due to steep shoreline slopes and poor bottom conditions, most of the LS would be constructed from uplands, thereby reducing impacts to aquatic resources.
COMPENSATORY MITIGATION: The applicant proposes to buy 0.067 credits from an approved bank to compensate for 1,950 ft² (0.045 acres) of impacts to non-tidal scrub-shrub wetlands. The applicant proposes the onsite restoration/creation of 14,200 ft² (0.326 acres) of intertidal emergent and 10,400 ft² (0.239 acres) of intertidal scrub-shrub wetlands associated with the LS to compensate for the loss of 2,190 ft² (0.05 acres) of intertidal emergent and 7,060 ft² (0.162 acres) of intertidal scrub-shrub wetlands. The applicant proposes the loss of 15,900 ft² (0.365 acres) of subaqueous bottom associated with construction of the LS is compensated by the creation of 26,300 ft² (0.604 acres) of subaqueous bottom by grading down the majority of the old fill upland peninsula. The applicant also plans to seed oyster spat on the seaward face of the living shoreline, an approximately 8,500 ft² (0.2 acres) area.
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 Norfolk Wetlands Board.
Copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website (hyperlink).
||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:
||No listed/proposed/candidate species and/or designated/proposed critical habitat under the ESA of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended, will be affected. Based on this “no effect” determination, no further coordination with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) is required
||The Northern long-eared bat may be affected, but the FWS Information and Planning and Consultation (IPaC) 4(d) determination key was completed and no further coordination with the FWS is required.
||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.
||Historic Resources eligible for inclusion or included in the 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).
||The Eastern Branch of the Elizabeth River contains EFH for the Atlantic butterfish
(Peprilus triacanthus), Atlantic herring (Clupea harengus), black sea bass (Centropristis striata), bluefish (Pomatomus saltatrix), clearnose skate (Raja eglanteria), little skate (Leucoraja erinacea), red hake (Urophycis chuss), summer flounder (Paralichthys dentatus), windowpane flounder (Scophthalmus aguosus), and winter skate (Leucoraja ocellata). The habitat which this project would affect consists of deep and shallow water, mud flats, and intertidal wetlands. The project would also affect man-made habitat created by pilings, dilapidated structures, and shoreline comprised of broken concrete/debris. The proposed project is described in Proposed Work and Purpose, above. 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 long history of site disturbance associated with maritime use of this highly industrialized portion of the river, the wide river width (>900 feet), and the expected short-term nature of increased turbidity and noise during the construction phase. There is an absence of submerged aquatic vegetation and anadromous fish spawning habitat. Stabilization of much of the shoreline using LS and seeding the channelward face with oyster spat should improve EFH habitat. 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) 698-4204 or e-mail: email@example.com.
||The applicant has not submitted concurrence.
||The applicant has submitted concurrence.
||No concurrence is required because the project is not located within Virginia’s Coastal Zone.
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.
PRE-FILING MEETING (PFM)
||The applicant has requested a PFM with DEQ.
||The applicant has not requested a PFM with DEQ.
COMMENT PERIOD: Comments on this project should be in writing and can be sent by either email to firstname.lastname@example.org, 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 July 22, 2021.
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 Mr. David Knepper at email@example.com or (757) 201-7488.