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NAO-2017-01846

Posted: 11/14/2018

Expiration date: 12/14/2018


14 November 2018
CENAO-WRR-C
NAO-2017-01846


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

APPLICANT
City of Norfolk
c/o Ms. Christine Morris
Chief Resilience Officer
501 Boush Street
Norfolk, VA  23510

WATERWAY AND LOCATION OF THE PROPOSED WORK:  The project is located in Ohio Creek, Haynes Creek, and the Eastern Branch of the Elizabeth River in Norfolk, Virginia. 

PROPOSED WORK AND PURPOSE:  The proposed project is known as the Ohio Creek Watershed Project and has the stated goals of improving neighborhood quality by strengthening flood resiliency, supporting economic opportunity, and increasing neighborhood connectivity.  As part of perimeter flood protection, the applicant proposes to construct 7150 linear feet of earthen berm that extends around the coastal edge of Chesterfield Heights and portions of Grandy Village.  In most areas, this feature has been designed as an earthen berm with vegetated slopes to create a more natural feature that blends into the landscape.  The perimeter flood protection incorporates a layered approach to establish a naturally resilient edge.  This includes a living shoreline component (4200 linear feet) on the channelward side of an earthen berm that would establish a new, broad wetland fringeThe living shoreline structures would include oyster reef backed by rock sills and wetland enhancement areas on the shoreward side.  The backshore is of sufficient elevation to protect the berm from storm waves and to allow the new marsh to migrate upslope as sea level rises.  Additionally, 900 linear feet of floodwall would be constructed across the Haynes Creek wetland system immediately south of Kimball Terrace.  A tide gate would be installed at the mouth of Haynes Creek to control storm surge inundation, and a lower berm feature would protect the perimeter of the creek.  The tide gate on Haynes Creek is necessary because the proximity of residential homes along the edge of Haynes Creek prevents installation of a full-height berm. Extensive vegetated wetlands border the narrow back yards and pervasive weak soils occur within this area. Due to these factors, the tide gate was introduced to prevent storm surge events from overtopping the lower height berm within Haynes Creek.  The Haynes Creek tide gate would close during storm events with large storm surges which could flood the Haynes Creek marshes and adjacent areas.  During this time, the marsh would be used for stormwater storage.  The applicant considers it unlikely that salinity reductions during tide gate closure would result in a change in species composition or abundance in these marshes.  Having protected the perimeter of the neighborhood with the berm feature and living shoreline, direct runoff of rainfall is precluded and must be dealt with using pump stations.  Two new pump stations (Haynes Creek and Ballentine) would remove excess runoff within the interior of the neighborhood and discharge it channelward through the perimeter flood protection.  Additional improvements include green infrastructure within the existing streets, daylighting a tidal/non-tidal drainage feature in the playing fields between Chesterfield Heights and Grandy Village, creating additional onsite tidal wetlands, relocating a portion of Kimball Terrace and constructing a community pier at the south end of Ballentine Boulevard. 

Exclusive of the living shoreline component, the entire watershed improvement project will require impacts (permanent loss) to wetlands and subaqueous lands totaling 1.54 acres of vegetated tidal wetlands, 0.31 acres of non-vegetated tidal wetlands, 0.06 acres of subtidal bottom and 0.09 acres of non-tidal wetlands.  The living shoreline will impact approximately 1.16 acres of vegetated tidal wetlands, 2.47 acres of non-vegetated tidal wetlands, and 4.72 acres of subtidal areas.  New oyster habitat would displace approximately 3.5 acres of existing subtidal areas. 

Avoidance and minimization efforts already taken or proposed by the applicant include:

·         Since the area to be protected is a well-established neighborhood with extensive infrastructure and private property improvements, the perimeter flood protection is situated between existing improvements and existing wetlands and open-water features. As a result, positioning the berm feature further inland to avoid impacts to existing fringe wetlands and nearshore waters is not possible.

·         Equipment use in vegetated wetland areas would be avoided to the greatest extent possible. Mats would be used to minimize impacts where avoidance is not possible, or other measures would be taken to minimize root disturbance and to preserve preconstruction elevations.

·         The city would coordinate with the Virginia Marine Resources Commission (VMRC), National Oceanic and Atmospheric Administration (NOAA), and US Fish and Wildlife Service (USFWS) regarding any need for a time-of-year restriction on in-water construction activities in observance of anadromous fish. 

The applicant has prepared a Draft Environmental Impact Statement (DEIS; see below in FEDERAL EVALUATION OF APPLICATION) that evaluates the No Build and two other build alternatives in addition to the currently proposed project.  One of the build alternatives maximizes structural protections and would impact 3.6 acres of surface waters and 0.97 acres of wetlands.  The other build alternative minimizes structural protections and would impact 4.1 acres of surface waters and 1.96 acres of wetlands.  Although the No Build and both of these other build alternatives would result in less direct impacts to waters of the U.S. (including wetlands), the applicant claims only the current project meets all of the project goals. 

As compensation for non-living shoreline impacts, the applicant proposes onsite creation of tidal wetlands that they consider to yield approximately 1.25 credit acres, and purchase of mitigation banking credits.  The applicant does not propose any compensation for impacts from the living shoreline and oyster habitat because they consider these features to be self-mitigating.  Implementation of a living shoreline around the perimeter of the neighborhood results in encroachment into the existing wetland and subtidal areas.  The applicant states this element of the project results in a combination of temporary and conversion impacts (conversion of one habitat type to another) while resulting in 2.61 acres of created or enhanced vegetated tidal wetlands, rocky and sandy intertidal habitat (0.49 and 0.11 ac respectively), and rocky and sandy subtidal areas (0.61 and 0.15 ac respectively). 

In addition to the required Department of the Army permit, the applicant must obtain a Virginia Water Protection Permit/401 certification from the Virginia Department of Environmental Quality assuring that applicable laws and regulations pertaining to water quality are not violated and possibly a permit from the Norfolk Wetlands Board. This public notice and selected project drawings can also be viewed at: 

https://www.nao.usace.army.mil/Media/Public-Notices/ 

AUTHORITY:  Permits are required pursuant to 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. 

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 pursuant to the National Environmental Policy Act.  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 Virginia Department of Housing and Community Development (VDHCD) is the lead federal agency for this project, having assumed compliance obligations for the U.S. Department of Housing and Urban Development (HUD) as its “responsible entity” in accordance with HUD regulations at 24 CFR part 58.  As the lead agency for this project, VDHCD will be coordinating all final required consultations to fulfill the collective federal responsibilities under Section 7 of the Endangered Species Act of 1973 (PL 93-205) and Section 106 of the National Historic Preservation Act of 1966 (PL 89-665).  On behalf of VDHCD the City of Norfolk has prepared a Draft Environmental Impact Statement (DEIS) that is out for comment through 12 November 2018 (http://www.dhcd.virginia.gov/index.php/virginias-resiliency-plan/347-ohio-creek-watershed.html).  

Preliminary review by VDHCD/City of Norfolk indicate:  (1)  the following three federally-listed species have potential habitat within the project study area:  Atlantic Sturgeon (Acipenser oxyrinchus), Loggerhead Sea Turtle (Caretta caretta), and Shortnose Sturgeon (Acipenser brevirostrum).  The following nine federally-listed species are thought to have litte or no suitable habitat within the project study area:  Green Sea Turtle (Chelonia mydas), Hawksbill Sea Turtle (Eretmochelys inbricata), Kemp’s Ridley Sea Turtle (Lepidochelys kempii), Leatherback Sea Turtle (Dermochelys coriacea), Northern Long-Eared Bat (Myotis septentrionalis), Piping Plover (Charadrius melodus), Red Knot (Calidris canutus rufa), Roseate Tern (Sterna dougallii), and West Indian Manatee (Trichechus manatus).  The applicant is coordinating with the U.S. Fish and Wildlife Service and National Oceanic Atmospheric Association (NOAA) National Marine Fisheries Service (NMFS) as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended); and (2)  the Chesterfield Heights Historic District, which was listed in the Virginia Landmarks Register on 04 December 2002 and in the National Register of Historic Places on 10 June 2003, is in or near the permit area.  The applicant is coordinating with the Virginia Department of Historic Resources as required by the National Historic Preservation Act.  Additional information might change any of these findings. 

For compliance with the Coastal Zone Management Act of 1972, as amended for projects located in Tidewater, 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 Coastal Zone Management Program (VCP) and obtain concurrence from the Department of Environmental Quality (DEQ), Office of Environmental Impact Review (OEIR).  We have not received a certification from the applicant prior to publication of this public notice.  It is the applicant’s responsibility to submit a consistency certification to the Office of Environmental Impact Review 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 here: http://www.deq.virginia.gov/Programs/EnvironmentalImpactReview/FederalConsistencyReviews.aspx#cert.  For more information or to obtain a list of the enforceable policies of the VCP, contact the Department of Environmental Quality, Office of Environmental Impact Review at (804) 698-4330 or e-mail: bettina.sullivan@deq.virginia.gov or john.fisher@deq.virginia.gov. 

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 Elizabeth River contains EFH for all life stages of the Atlantic Butterfish (Peprilus triacanthus), black sea bass (Centropristis striata), bluefish (Pomatomus saltatrix), and the Summer flounder (Paralichthys dentatus).  VDHCD/City of Norfolk are coordinating with NMFS to determine any potential impacts to EFH. 

COMMENT PERIOD:  Comments on this project should be in writing and can be sent by either email to david.a.knepper@usace.army.mil, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WR-R), 803 Front Street, Norfolk, Virginia  23510-1011, and should be received by the close of business on 14 December 2018.

PRIVACY & 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. 

Attachments: Permit Support Document, Drawings

Eastern Branch Elizabeth River flood control Haynes Creek Norfolk Ohio Creek resiliency