March 5, 2024
CENAO-WRR
NAO-2023-02805
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
Mr. Bob Kershaw
523 Dewar Drive
Telford, PA 18969
PROJECT LOCATION: Across from 3530 Main Street in Chincoteague, Accomack County, VA
PROJECT SIZE: 0.03-acre
NEAREST WATERWAY: Chincoteague Channel
LATITUDE AND LONGITUDE: 37.925093, -75.389064
PROJECT DESCRIPTION AND PURPOSE:
The project includes the installation of a vinyl bulkhead 50 linear feet in length and backfilling approximately 1,383 square feet of waters of the U.S. (1,215 square feet/0.029-acre of open water and 168 square feet/0.004-acre of mudflat) to convert an existing manmade boat basin to uplands. Approximately 225 cubic yards of clean fill is proposed to be used to fill in the existing basin with approximately 70 cubic yards to be placed below mean high water. The approximate depth of the existing basin at mean high water is 2 linear feet. The approximate depth of the existing basin at mean low water is 0.5 linear feet.
The existing basin was estimated to have been created in the 1950s to accommodate a small fleet of wooden skiffs rented to recreational anglers. However, since the 1970s, the original use of the basin has ceased, and the wood sheathing bulkhead surrounding it has deteriorated. The applicant's purpose is to convert the existing basin into uplands stabilized by a new bulkhead, providing safe access to the water's edge.
AVOIDANCE AND MINIMIZATION: The bulkhead is proposed to be constructed prior to the placement of any fill. The proposed fill will consist of clean soil from an upland source. The proposed bulkhead will be constructed in line with the existing bulkheads on adjacent lots. No trees are proposed to be removed within the project area.
COMPENSATORY MITIGATION:
No compensatory mitigation is proposed as the loss of waters of the U.S. is less than 1/10-acre.
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 Accomack County Wetlands Board.
A copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website (20232757).
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.
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 U.S. Army 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 U.S. Army 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 U.S. Army Corps of Engineers has made preliminary determinations that:
The project will have no effect on the Northern Long-Eared Bat (Myotis septentrionalis), Piping Plover (Charadrius melodus), Rufa Red Knot (Calidris canutus rufa), and Tricolored bat (Perimyotis subflavus). The project will also have no effect on land habitat for Green sea turtle (Chelonia mydas), Hawksbill sea turtle (Eretmochelys imbricata), Kemp's ridley sea turtle (Lepidochelys kempii), Leatherback sea turtle (Dermochelys coriacea), and Loggerhead sea turtle (Caretta caretta). 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 FWS.
The project is not likely to adversely effect Atlantic sturgeon, Kemp’s ridley sea turtle, Loggerhead Sea turtle, Green sea turtle, and Leatherback sea turtle. 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.
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).
The Chincoteague Channel contains EFH for Clearnose Skate, Summer Flounder, Windowpane Flounder, Black Sea Bass, Atlantic Herring, Winter Skate, Bluefish, and Atlantic Butterfish.
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, the order of construction (installation of bulkhead prior to placement of fill), and the overall scope and nature of the work involving filling an existing boat basin. 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 U.S. Army Corps of Engineers 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 U.S. Army Corps of Engineers 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, U.S. Army Corps of Engineers (ATTN: CENAO-WRR), 803 Front Street, Norfolk, VA 23510-1011, and should be received by the close of business on April 4, 2024.
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.
Attachments:
IPaC
USFWS Self-Certification Letter