NAO-2010-00809 (NSN Dredging Phase II, Norfolk, Virginia)

July 17, 2024
CENAO-WRR-E
NAO-2010-00809 / VMRC 23-V1728

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

APPLICANT
Captain Janet H. Days, Commander Naval Station Norfolk
1530 Gilbert Street, Building N26 Norfolk, VA 23511

PROJECT LOCATION: The entire waterfront pier area at Naval Station Norfolk in Norfolk, Virginia.

PROJECT SIZE: The proposed dredging areas total 340 acres.

NEAREST WATERWAY: Elizabeth River and Willoughby Bay

LATITUDE AND LONGITUDE: 36.9513, -76.3282

PROJECT DESCRIPTION AND PURPOSE: The Navy is requesting a permit modification for the Naval Station Norfolk (NSN) Maintenance Dredging individual permit that was issued on February 29, 2024.

The Navy is requesting a permit modification for the newly tested NSN Phase II areas that would allow additional dredged material placement options. These options are ocean placement at the Norfolk Ocean Disposal Site (NODS), pipeline placement at the Craney Island Dredged Material Management Area (CIDMMA), disposal at an approved upland facility, or a combination of these alternatives. The Navy estimates that approximately 1.7 million cubic yards of dredged material in Phase II would be removed and approximately 1.0 million cubic yards of dredged material would be mechanically dredged and then transported to the Norfolk Ocean Disposal Site (NODS) for ocean placement, but if capacity becomes available at the Craney Island Dredged Material Management Area (CIDMMA), then some of the 1.0 million cubic yards would be hydraulically dredged and piped there instead. When NODS is the placement area, the dredged material would be transported by bottom dump scow and then placed offshore. If the Navy plans to dispose of dredged material at NODS after the first three years of the permit, additional testing and Section 103 coordination will be required.

Pursuant to Section 103 of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972 and USACE policy 33 Code of Federal Regulations (CFR) 337.1, this Public Notice serves as the U.S. Army Corps of Engineers, Norfolk District (Corps) notification relating to proposed transport for the purpose of disposal of suitable dredged material from the Norfolk Naval Shipyard maintenance dredging project encompassing 

1.0 million cubic yards at the NODS. Dredged materials proposed for transport for the purpose of discharge in ocean waters must be evaluated and permitted by the Corps in accordance with parts 225 and 227 of the MPRSA and processed in accordance with 33 CFR 324. The applicant is seeking a Section 103 permit from the USACE and concurrence from the U.S. Environmental Protection Agency (USEPA) Region III review and concurrence that the dredged material meets MPRSA criteria (40 CFR 227) and that dredged material may be transported to and disposed of at the NODS if a permit is issued for the dredging activities.

Approximately 1.0 million cubic yards of dredged material from this project is proposed for transport and placement at the NODS during the second phase of the project during the 3-year Section 103 concurrence period. The NODS is located in the Atlantic Ocean approximately 17 miles east of Cape Henry. The center point coordinate of the NODS is latitude 36°59’00” North and longitude 75°39’00” West. The site is circular with a radius of 4 nautical miles and has an area of approximately 50 square nautical miles. The NODS has been formerly designated for the placement of suitable dredged materials in 40 Code of Federal Regulations (CFR) Part 228.1 by the EPA Administrator pursuant to section 102(c) of the MPRSA.

Prior to 2008, the NODS was solely used by the U.S. Navy. In August 1993, approximately 51,000 cubic yards (CY) of dredged material from the Naval Supply Center Cheatham Annex and 475,000 CY of dredged material from the Naval Weapons Station Yorktown were placed at the site. Since 2010, other projects that have been recently placed at the NODS include the VDOT – Midtown Tunnel (1,121,642 CY placed October 2013 to October 2014), Joint Base Langley Eustis (JBLE) – Skiffes Creek Channel (128,244 CY placed November 2014 to December 2014), JBLE – Fuel Pier Basin (57,122 CY placed February 2019 to July 2019), the JBLE – Back River Channel (125,723 CY placed February 2019 to July 2019), and Norfolk Harbor Channels 50-ft Maintenance (ongoing). Other projects that have been previously permitted for placement at the NODS include CIEE (24.5 MCY), Yorktown Naval Weapons Station (65,000 CY), Chesapeake Bay Bridge Tunnel – Parallel Thimble Shoals Tunnel Project (1.7 MCY), Cheatham Annex CAD-A Pier (88,000 CY), Naval Weapons Stations Yorktown R3 Pier (110,000 CY), Norfolk Harbor Navigation Improvements Project (12.1 MCY), Portsmouth Marine Terminal (216,737 CY), and the Naval Station Norfolk Maintenance Dredging (Phase I is currently underway). There have been no documented effects from the authorized discharges that have been made in the placement area.

DREDGED MATERIAL CHARACTERISTICS AND COMPOSITION: Sediments proposed for dredging consist of maintenance dredged material in the NSN maintenance dredging project. Grain size of the dredged material in the project area is primarily of fine-grained materials and consisted of 86.7 to 98.9 percent silt+clay. A small portion of the dredged material volume is a mixture of sands and fines, ranging from 16.9 to 48.1 percent silt and clay. 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 of the project area detected the presence of metals, dioxin/furan congeners, polycyclic aromatic hydrocarbons (PAHs), and semi- volatile organic compounds (SVOCs) were detected in the bulk sediments from the NSN maintenance dredging project.

Dredged material from the Naval Station Norfolk was tested for liquid phase, liquid and suspended particulate phase, and solid phase (e.g., benthic toxicity and benthic bioaccumulation) using criteria and procedures developed by the Administrator of the USEPA in accordance with 40 CFR 220-228. Evaluation of the liquid phase dredged material has determined the material from the NSN maintenance dredging project complies with the Limiting Permissible Concentration (LPC) at the NODS and is in compliance with 40 CFR 227.6(c)(1) and 227.27(a)(1). Evaluation of the liquid and suspended particulate phase dredged material has determined the material from the NSN maintenance dredging project complies with the LPC at the NODS and is in compliance with 40 CFR 227.6(c)(2) and 227.27(b). Evaluation of the solid phase dredged material has determined the material from the NSN maintenance dredging project complies with the LPC and is in compliance with 40 CFR 227.13(c)(3), 227.6(c)(3) and 227.27(b) for placement at the NODS. The dredged material from the NSN maintenance dredging project meets the LPC for benthic bioaccumulation and complies with the benthic criteria of 40 CFR Part 227.13 (c)(3) for placement at NODS. The dredged material as described from the NSN maintenance dredging project meets the MPRSA criteria (40 CFR 227).

AVOIDANCE AND MINIMIZATION:
The Navy will implement dredging best management practices, including controlling the rate of ascent of the dredging bucket and avoiding overfilling of the bucket. In dredging areas where the material is designated for upland placement only (CEP-111 bulkhead area, V-50 basin, and tug basin), turbidity curtains will be deployed to reduce turbidity. BMPs for hydraulic dredging may include reducing the cutterhead rotation speed if visible turbidity or sedimentation is produced and reducing the swing speed when moving the dredge.

Dredged material has been sampled and analyzed for placement at NODS. To minimize strike potential to sea turtles and marine mammals, disposal vessels transiting between the Naval Station Norfolk and NODS will not exceed speeds of 10 knots.

COMPENSATORY MITIGATION:
The Navy is not proposing compensation for the dredging impacts.

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=20231728

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.
(X)      Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).
(X)      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). On June 7, 2023, the NOAA Greater Atlantic Regional Fisheries Office, Protected Resources Division concurred that this project is not likely to adversely affect listed species or critical habitat provided that vessels greater than 65 feet (traveling to the NODS) limit their speeds to less than 10 knots during whale migration and calving seasons.

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. On March 20, 2023, the Virginia Department of Historic Resources determined that the project will have an effect of historic resources but that the effect will not be adverse.

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 Elizabeth River and Willoughby Bay contain EFH for various life stages of the life stages of 10 species including Atlantic herring, red hake, clearnose skate, windowpane flounder, Atlantic sharpnose shark, bluefish, Atlantic butterfish, summer flounder, scup, and black sea bass. The habitat which this project would affect consists mostly of deepwater port areas that are periodically maintained through dredging. The substrate mainly consists of fine-grained sediment like silt and clay. The Navy coordinated the project impacts with NOAA Fisheries on June 14, 2023, and NOAA concurred with the Navy’s determination that the proposed maintenance dredging will not substantially adversely affect EFH and is of the opinion that given the width of the waterways where the dredging will occur, a time of year restriction to help protect the migration and spawning of anadromous fish is not warranted.

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 submitted concurrence.

SECTION 408:
The Norfolk District granted Section 408 Permission for this project to alter the Norfolk Harbor and Channels Federal Navigation Project (Lamberts Bend to Sewells Point Channel) and the Craney Island Dredged Material Management Area (CIDMMA) in October 2023 pursuant Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408 (Section 408)). The proposed permit modification does not change the scope of this Section 408 evaluation and a new or revised permission will not be required. Any questions or comments specific to the Section process should be submitted directly to the Section 40 Team Lead, Katy Damico, via email at katy.r.damico@usace.army.mil or nao.section408@usace.army.mil.

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 autumn.m.crawford@usace.army.mil or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN: CENAO-WRR, Autumn Crawford), 803 Front Street, Norfolk, VA 23510-1011, and should be received by the close of business on August 16, 2024.