Public Review Draft: May 2021
Prepared by: U.S. Army Corps of Engineers, Norfolk District
803 Front Street
Norfolk, Virginia 23510
PUBLIC REVIEW SYNOPSIS:
Interested parties are hereby notified that the Norfolk District is considering implementation of a categorical permission (CP) for permission to alter several U.S. Army Corps of Engineers (USACE) projects pursuant to Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. Section 408). Written comments, including any objections to the proposed alteration and associated categorical permission, stating reasons therefor, are being solicited from anyone having an interest in the proposed categorical permission being considered. The authority to grant permission for temporary or permanent use, occupation or alteration of any USACE civil works project is contained in Section 14 of the Rivers and Harbors Act of 1899, as amended, codified at 33 USC 408 (“Section 408”). Section 408 authorizes the Secretary of the Army to grant permission for the alteration or occupation or use of a USACE 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.
This categorical permission is considering maintenance dredging and dredged material placement activities associated with the Civil Works Federal Navigation Projects located within the Middle Peninsula, Virginia listed below and included in the attached file titled ‘MiddlePeninsula408DredgingCatPerm.pdf’.
Written comments may be submitted to:
U.S. Army Corps of Engineers, Norfolk District
803 Front Street
Norfolk, VA 23510-1096
ATTN: Michael L. Anderson
Or email to Michael.L.Anderson@usace.army.mil,
If you have any questions, please contact Michael Anderson, by telephone at 757-201-7584 or via email at Michael.L.Anderson@usace.army.mil. Comments are due by June 11, 2021.
AUTHORITY:
The authority to grant permission for temporary or permanent use, occupation or alteration of any U.S. Army Corps of Engineers (USACE) civil works project is contained in Section 14 of the Rivers and Harbors Act of 1899, as amended, codified at 33 U.S.C. 408 (“Section 408”). Section 408 authorizes the Secretary of the Army, on the recommendation of the Chief of Engineers, to grant permission for the alteration or occupation or use of a USACE 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.
The Secretary of the Army’s authority under Section 408 has been delegated to the USACE, Chief of Engineers. The USACE Chief of Engineers has further delegated the authority to the USACE, Directorate of Civil Works, Division and District Commanders, and supervisory Division Chiefs depending upon the nature of the proposed activity.
INTRODUCTION:
The purpose of this document is to establish a categorical permission (CP) in order to expedite and streamline the review and decisions of Section 408 requests that are similar in nature and have similar impacts to the USACE project and environment. This CP requires approval by the Norfolk District Commander. There are numerous USACE federally authorized civil works projects (USACE federal projects) within the boundaries of the Norfolk District. Each year the Norfolk District receives requests through the non-federal project sponsors from private, public, tribal, and other federal entities (requesters) to alter USACE federal projects pursuant to Section 408. The majority of these requests are for relatively minor alterations.
CATEGORICAL PERMISSION:
When the Norfolk District receives a request to alter a USACE project, the district follows a review process outlined by Engineering Circular (EC) 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 USC 408. To streamline the review process, EC 1165-2-220, paragraph 10.a. states that USACE districts can develop categorical permissions to cover potential alterations that are similar in nature and that have similar impacts.
Categorical Permission. The district, division, and/or HQUSACE have the ability to create a “categorical permission” in order to expedite and streamline the review and decisions of Section 408 requests that are similar in nature and that have similar impacts to the USACE project and environment. An assessment of impacts to the usefulness of the USACE project, environmental compliance, and a public interest determination is conducted ahead of time for a common category of activities. For those individual Section 408 requests that are consistent with the terms and conditions of an established categorical permission, the Section 408 request can be granted with a simplified validation process.
The environmental effects associated with the alterations covered in this CP have been analyzed. The District has preliminarily concluded that the Section 408 determination is adequately covered in the National Environmental Policy Act (NEPA) Decision Document for Corps’ Regional Permit 2, and that our Section 408 jurisdiction does not expand the NEPA scope of review beyond the areas and impacts considered in Regulatory’s NEPA review. Before the final Section 408 categorical decision is made, a findings and final decision of the environmental effects associated with the alterations covered in this CP will be documented in a record of environmental consideration. In connection with the CP, the Regulatory Branch will be reviewing and modifying, as appropriate, the existing RP-2 to cover third party maintenance of authorized USACE Civil Works dredging projects. Any outlier section 408 request would need to be covered by a Standard Permit or Letter of Permission, depending on the proposed disposal method.
CATEGORICAL PERMISSION ALTERATIONS:
This CP encompasses alterations that are similar in nature and have similar impacts. The alterations listed are representative of the types of alterations and associated impacts that have been approved under Section 408 since issuance of EC 1165-2-220. The descriptions and criteria to be used to determine validation under the CP have been coordinated with Regulatory Division to ensure consistency between similar permitting actions.
Proposed alteration requests that do not qualify under this CP would be reviewed and a decision made that follows one of the other options for seeking Section 408 permission described in EC 1165-2-220.
For an alteration to be approved under this CP, the proposed design, construction, must meet the alteration description, have no disqualifying circumstances, and adhere to applicable environmental requirements and conditions (see Conditions Section).
Categorical Permission Alteration Description:
Maintenance Dredging and Dredged Material Placement Activities associated with the Civil Works Federal Navigation Projects located within the Middle Peninsula, Virginia listed below and included in the attached file titled ‘MiddlePeninsula408DredgingCatPerm.pdf’. The attached file indicates each federal project included in this CP, the non-federal sponsor for the Civil Works project, distance to USACE designated placement site if applicable, geo-referenced channel framework, setback distance from the federal project indicating boundary for which Section 408 authority applies, and authorized dimensions.
List of Civil Works Projects included as part of this CP.
- Rappahannock River
- Hoskins Creek
- Parrots Creek
- Mattaponi River
- Pamunkey River
- Urbanna Creek
- Whitings Creek
- Locklies Creek
- Mill Creek
- Broad Creek
- Jackson Creek
- Queens Creek
- Milford Haven
- Winter Harbor
- Horn Harbor
- Davis Creek
- Aberdeen Creek
Figure 1. Illustration of common terms for federal project channels (available on attached copy of public notice)
Authorized Dimensions. Authorized dimensions are the depth and width of the channel authorized by Congress to be constructed and maintained by USACE.
Paid Allowable Overdepth. Paid allowable overdepth dredging (depth and/or width) is a construction design method for dredging that occurs outside the required authorized dimensions to compensate for physical conditions and inaccuracies in the dredging process and allow for efficient dredging practices. The term “allowable” must be understood in the contracting context of which dredging quantities are eligible for payment, rather than in the regulatory context of which dredging quantities are reflected in environmental compliance documents and permits.
Non-pay Dredging. Non-pay dredging, also known as non-paid overdepth, is dredging outside the paid allowable overdepth that may and does occur due to such factors as unanticipated variation in substrate, incidental removal of submerged obstructions, or wind or wave conditions that reduce the operators’ ability to control the excavation head. In environmental documentation, non-pay dredging is normally recognized as a contingency allowance on dredging quantities, and may and does occur in varying magnitude and locations during construction and maintenance of a project.
DISQUALIFYING CIRCUMSTANCES:
The following conditions would disqualify the use of this CP:
- The alteration could not be decided at the District level.
- The alteration would remove riparian or sensitive habitat.
- The alteration would adversely impact a public use facility.
- The alteration would require an Environmental Assessment or Environmental Impact Statement outside the scope already addressed in this CP and Regulatory RP-2.
CONDITIONS:
The following conditions must be met to qualify for this CP. A proposed alteration that does not meet these conditions will be evaluated under the individual alteration review process. USACE may impose project specific conditions in addition to the conditions below.
- Maintenance dredging shall not exceed the authorized dimensions of the federal project (depth or width). This does not include any paid allowable overdepth dredging as described in this CP.
- If the requester is other than the non-federal sponsor, a written “Statement of No Objection” from the non-federal sponsor shall be provided as part of the alteration request.
- All companies/agencies whose existing utilities are located in the intended construction area(s) must be contacted to determine whether those utilities need to be relocated or modified to accommodate the proposed alteration, or whether they would pose any hazards to alteration construction workers or equipment.
- Appropriate property rights must be acquired as needed for construction, operation, and maintenance of the alteration. This only applies if the requester is seeking to use a Civil Works Project asset such as a dredged material placement site in which the Government already owns the property or has a real estate interest conveyed from the non-Federal sponsor of the Civil Works project.
- Areas associated with access to the project site in which a USACE real estate instrument is required with the alteration must be restored to pre-construction conditions once the work is complete.
- The Section 408 request must include construction drawings that show details of all proposed activities within the limits of the Federal project and designated setback distance for which Section 408 authority applies. Details shall include anticipated quantity of dredged material volume to be removed, a plan view of the dredging area and typical cross section showing maximum dredging depths. The location of where dredged material will be placed must be identified. The means and method in which dredging operations must be provided (excavator, mechanical, clam shell, hydraulic Cutterhead with pipeline).
- If placement of dredged material is proposed to be placed nearshore or overboard, adjacent to the Federal channel, the limit of dredged material shall not encroach within the setback distance from the Federal project as shown on the attached file titled ‘MiddlePeninsula408DredgingCatPerm.pdf’.
- Prior to the start of construction, the applicant shall obtain all applicable Federal, state, and local permits required to perform the proposed work.
- As this type activity may interfere with marine traffic in the Federal channel, the applicant shall coordinate those activities with the US Coast Guard – Sector Virginia at HamptonRoadsWaterway@uscg.mil or (757) 668-5580 a minimum of 45 days prior to commencement of work, so that those activities that may impact navigation can be included in the Local Notice to Mariners.
- As this type activity may require the USCG to temporarily or permanently relocate their aids to navigation (ATON) to facilitate maintenance dredging activities, the applicant shall coordinate those activities with the US Coast Guard – Sector Virginia at HamptonRoadsWaterway@uscg.mil or (757) 668-5580 a minimum of 45 days prior to commencement of work, so that the USCG may have adequate time to coordinate resources required to relocate ATONs.
- The applicant shall ensure that its contractor performs all work in such a manner that its plant and equipment encroach or obstructs the Federal channel to the minimum extent possible. When the contractor’s plant does obstruct the channel so as to make difficult or endanger the passage of vessels, said plant shall be promptly moved on the approach of any vessel to such an extent as may be necessary to afford a safe passage.
IMPLEMENTING CATEGORICAL PERMISSION:
ALTERATION REQUEST: The requester must provide CP justification. USACE will review and verify the alteration to ensure it is covered under the CP and identify additional information required to process the request.
TECHNICAL AND ENVIRONMENTAL REVIEWS: Required engineering and environmental reviews are completed, including initiation of any necessary consultations.
VALIDATION: The Section 408 Validation Memorandum will be completed by the District with supporting technical review memoranda as required. If approved, the decision making authority would sign the Section 408 validation memorandum and the letter of permission.