September 15, 2023
CENAO-WRR
NAO-2020-01965
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
Dr. Yann A. Le Gouellec
Newport News Waterworks
700 Town Center Drive, Suite 500
Newport News, Virginia 23606
PROJECT LOCATION: The proposed project is located at the Little Creek Reservoir Dam in James City County, Virginia.
PROJECT SIZE: 43.08 acres
NEAREST WATERWAY: Little Creek/Little Creek Reservoir
LATITUDE AND LONGITUDE: 37.3499°N; -76.8412°W
PROJECT DESCRIPTION AND PURPOSE: The Little Creek Dam Seepage Remediation Project will permanently impact 1.15 acres of non-tidal wetlands, 0.45 acres of tidal wetlands, 0.31 acres of submerged aquatic vegetation, 0.36 acres of riverine unconsolidated bottom, 12 linear feet of perennial stream for construction of the replacement toe berm. The toe berm will be constructed with filter sand and gravel, protected by riprap. In addition, the project will temporarily impact 0.12 acres of non-tidal wetlands, 0.04 acres of tidal wetlands, 0.18 acres of riverine unconsolidated bottom, and 12 linear feet of perennial stream due to the use of cofferdam construction to perform work in the dry, construction work area, and installation of erosion and sediment control measures. These temporary impacts will be restored to their pre-construction conditions prior to the completion of construction.
Newport News Waterworks seeks a long-term solution for the dam safety issues at the Little Creek Reservoir dam, which consist of seepage and internal erosion at the toe, seepage at the right abutment, and seepage at/above the upper bench near the right abutment, while maintaining a safe drinking water yield from this reservoir for reliable distribution to their customers.
AVOIDANCE AND MINIMIZATION: Newport News Waterworks evaluated 13 alternatives to ensure the least environmentally damaging practicable alternative was proposed. Avoidance and minimization measures have been integrated into site planning to ensure the impacts proposed are the minimum required to construct the project. The proposed alternative includes three (3) remedial measures to meet the project purpose. Two (2) of the remedial measures, the groin swale and filter blanket, avoid all impact to waters of the U.S. Remedial item three (3), the filter toe berm, is downstream of a water supply reservoir making impacts to waters of the U.S. unavoidable. During design, the applicant considered an earthen fill toe berm as an alternative to the proposed rockfill toe berm. An earthen fill toe berm was determined to require a larger footprint and therefore more impacts to waters of the U.S than the proposed rockfill berm. The larger earthen toe berm would also extend to the upland on the west side of the dam, effectively severing hydrologic connectivity to the upstream wetlands with the downstream tidal wetlands. The earthen fill toe berm would also have less permeability than the rockfill, which would further inhibit drainage from these wetlands and lead to secondary impacts.
COMPENSATORY MITIGATION: Compensatory mitigation is required for permanent impacts to 1.6 acres of wetlands, 12 linear feet of stream, and 0.31 acres of SAVs. The applicant proposes to purchase 1.43 non-tidal wetland credits and 111 stream credits from an approved mitigation bank within the Lower James River watershed (02080206). 0.47 freshwater tidal wetland credits will be purchased from the Virginia Aquatic Resource Trust Fund in-lieu fee program. Please note that 11 of the stream credits to be purchased are to offset impacts to 12 LF of stream and the remaining 100 credits to be purchased are to mitigate for impacts to 0.31 acres of SAV.
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.
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=20231541).
AUTHORITY:
(X) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).
(X) 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).
( ) Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408 (Section 408)).
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 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 and the National Marine Fisheries Service (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).
Little Creek contains EFH for the adult, juvenile, egg, and larvae life stages of nine species including Little Skate, Atlantic Herring, Red Hake, Winter Skate, Clearnose Skate, Windowpane Flounder, Bluefish, Summer Flounder, and Black Sea Bass. No habitat areas of particular concern or areas protected from fishing were identified within the project area. The habitat which this project would affect consists of a fresh to slightly brackish shallow water tidal creek characterized by a non-vegetated mud bottom buffered by tidal and non-tidal wetlands with the presence of SAV. The proposed project is described in Proposed Work and Purpose, above. VIMs interactive SAV mapper indicates the presence of SAV at the toe of the Little Creek Dam and the downstream reach of Little Creek. We are awaiting the results of a survey, but based on 2017-2021 SAV composite data from VIMS, approximately 0.31 acres of SAV will be permanently impacted by the project. 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. The applicant will incorporate the use of a cofferdam so that all construction work can be performed in the dry. To offset the loss of SAV habitat the applicant is proposing to purchase 100 stream credits from a mitigation bank within the Lower James River watershed to reduce nutrient and sediment loads, thereby benefitting SAV in the James River. 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. A template federal consistency certification can be found in the Federal Consistency Manual here: https://www.deq.virginia.gov/our-programs/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 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 randy.l.steffey@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 October 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, contact Mr. Randy Steffey at randy.l.steffey@usace.army.mil or by phone at 757-201-7579.
Attachments:
Location Map
Impact Map
Species Conclusion Table
IPAC Official Species List
Northern Long Eared Bat Concurrence Letter
IPAC Self Certification Letter