May 16, 2023
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
Kinder Morgan Operating L.P. “C”
c/o Mr. Bradley Gilliatt
1900 Harbor Access Road
Newport News, VA 23607
PROJECT LOCATION: 1900 Harbor Access Road in Newport News, VA 23607
PROJECT SIZE: 42.51 acres
NEAREST WATERWAY: James River
LATITUDE AND LONGITUDE: 36.967245, -76.428139
PROJECT DESCRIPTION AND PURPOSE:
The project involves dredging approximately 266,700 cubic yards around Piers IX and X at the Kinder Morgan Bulk Terminals to increase the depth throughout the facility to -55 feet at mean low water. The purpose of the project is to deepen the berths to the depths of the federal channel to provide safer ingress/egress and berthing for the larger bulk transport ships to access the existing bulk terminals. Once deepened to -55 feet at mean low water, the project will involve maintenance dredging (approximately 150,000 cubic yards) every 2-3 years. The material will be mechanically dredged then transported in barges for proper upland disposal at Shirley Plantation or the Craney Island Dredged Material Management Area (CIDMMA). Disposal is dependent on availability at the Craney Island Dredged Material Management Area (CIDMMA).
The applicant has received previous permits to dredge the same area to -52 feet at mean low water on the north and south sides of Pier IX and the south side of Pier X, and -38 feet at mean low water on the north side of Pier X. The project will increase the depth from -52 feet at mean low water to -55 feet at mean low water (3-foot difference) on the north and south sides of Pier IX and the south side of Pier X, and increase the depth from -38 feet at mean low water to -55 feet at mean low water (17-foot difference) on the north side of Pier X.
AVOIDANCE AND MINIMIZATION: The proposed dredging project has been limited to areas previously dredged. It will not impact any wetlands or submerged aquatic vegetation.
COMPENSATORY MITIGATION: Compensatory mitigation is not proposed. There is no loss of waters of the U.S. associated with the project.
AUTHORITY: Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403)
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.
The applicant has already received a waiver from the Virginia Department of Environmental Quality (DEQ) and permit from the Virginia Marine Resources Commission (VMRC). Additionally, the applicant has received a letter from the City of Newport News Wetland Board stating a permit is not required for the proposed project.
A copy of the joint permit application, DEQ waiver, VMRC permit, and City of Newport News Wetland Board letter can be found on the Virginia Marine Resources Commission’s website (20220848).
ENDANGERED SPECIES: After conducting the Norfolk District Endangered Species Act (ESA) Project Review Process, the Corps has made the preliminary determination that:
The project will have no effect on the Northern Long-eared Bat and Tricolored Bat. The U.S. Fish and Wildlife Service (FWS) Information and Planning and Consultation (IPaC) Official Species List and Species Conclusion Table are attached for review and comment by the FWS.
The project is not likely to adversely effect Atlantic sturgeon, Kemp’s ridley sea turtle, Loggerhead Sea turtle, Green sea turtle, Leatherback sea turtle, and Shortnose sturgeon. The Corps will coordinate the project with the National Marine Fisheries Service (NMFS) in accordance with the GARFO PRD-USACE NAD 2017 NLAA Program procedures.
HISTORIC AND CULTURAL RESOURCES:
The Corps permit area is located within the boundaries of a known historic resource and American Battlefield Protection Program (ABPP) area. The Corps will coordinate the project with the Virginia Department of Historic Resource (VDHR) and the ABPP in accordance with Norfolk District procedures.
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 James River contains EFH for Little Skate, Atlantic Herring, Red Hake, Winter Skate, Clearnose Skate, Windowpane Flounder, Sandbar Shark, Sand Tiger Shark, Bluefish, Atlantic Butterfish, Summer Flounder, and Black Sea Bass.
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 absence of submerged aquatic vegetation and that the extent of dredge impacts, including the turbidity plume, will not prohibit passage of anadromous fish given the width of the waterway (approximately 18,300 linear feet at the narrowest point). Based on comments from the NMFS 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. Note: The applicant has already received concurrence and provided proof to the Corps.
SECTION 408: The Norfolk District Operations Branch has determined that the proposed maintenance dredging activities may require permission to alter the Norfolk Harbor and Channels, Channel to Newport News Federal Navigation Project and the Craney Island Dredged Material Management Area (CIDMMA) Federal Project pursuant to Section 14 of the Rivers and Harbors Act of 1889 (33 U.S.C. 408 (Section 408)). We hereby notify interested parties that we have received and are evaluating this request for permission to alter these federal projects. We are soliciting written comments, including any objections to the proposed alteration, stating reasons therefor, from anyone having an interest in the requested alteration. Section 408 authorizes the Secretary of the Army to grant permission for the alteration or occupation or use of a federal project if the Secretary determines that the activity will not be injurious to the public interest and will not impair the usefulness of the project. Comments specific to this Section 408 review should be submitted directly via email to the Section 408 Team Lead, Katy Damico, at firstname.lastname@example.org, copied to email@example.com, and the Regulatory contact noted in the Comment Period Section below.
VIRGINIA’S SECTION 401 WATER QUALITY CERTIFICATION PROGRAM: The Clean Water Act (CWA) Section 401 Certification Rule (Certification Rule, 40 CFR 121), effective September 11, 2020, requires certification, or waiver, for any license or permit that authorizes an activity that may result in a discharge. The scope of a CWA Section 401 certification is limited to ensuring that a discharge from a Federally licensed or permitted activity will comply with water quality requirements. To comply with the Virginia Section 401 Water Quality Certification Program and the Certification Rule, the applicant is responsible for adhering to the procedures outlined in the Certification Rule when requesting certification from the certifying authority, the Virginia Department of Environmental Quality. In accordance with Certification Rule part 121.12, the Corps will notify the U.S. Environmental Protection Agency Administrator when it has received a Department of the Army (DA) permit application and the related certification. The Administrator is responsible for determining whether the discharge may affect water quality in a neighboring jurisdiction. The DA permit may not be issued pending the conclusion of the Administrator’s determination of effects on neighboring jurisdictions.
COMMENT PERIOD: Comments on this project should be in writing and can be sent by either email to Brittany.D.Kopitsky@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 16, 2023.
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, please contact Mrs. Brittany Kopitsky via email at Brittany.D.Kopitsky@usace.army.mil or phone at 757-201-7893.
USFWS Self-Certification Letter