US Army Corps of Engineers
Norfolk District Website

NAO-2009-5001

Norfolk District, U.S. Army Corps of Engineers
Published July 7, 2021
Expiration date: 8/6/2021

July 7, 2021
CENAO-WRR
NAO-2009-5001

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

APPLICANT
George C. Lyon, President
Lyon Shipyard
PO Box 2180
Norfolk, VA 23501

PROJECT LOCATION: Lyon Shipyard is located at 1818 Brown Avenue in Norfolk, VA. Coordinates for the center of the project site are 36.8417 latitude and -76.2684 longitude. This project is located on the Eastern Branch of the Elizabeth River.

PROJECT SIZE: Approximate dredging footprint is 3.84 acres. This includes approximately 12,000 square feet (0.28 acres) of impacts to shallow water habitat.

NEAREST WATERWAY: Eastern Branch of the Elizabeth River 

LATITUDE AND LONGITUDE: 36.8417 latitude, -76.2684 longitude

PROJECT DESCRIPTION AND PURPOSE: In order to improve its shipyard operations, Lyon Shipyard is proposing to construct a travel lift system with two piers, with one protective /mooring dolphin located at the end of each pier, and a mechanically-dredged 3.84 acre basin which will be dredged to -24 feet Mean Low Water. Approximately 12,000 square feet (0.28 acres) of the dredging area will be converted from shallow water habitat to a deeper water habitat. The eastern travel lift pier will be 200 feet by 30 feet, and the western pier will be 186 feet by 20 feet. The two piers will be supported by a total of 170 24-inch square concrete piles. Each of the dolphins will consist of 13 (thirteen) 12-inch timber piles and will impact approximately 113 sq. ft. of subaqueous bottom, for a total of 226 square feet. To make room for the travel lift system, pier #1 (18 feet by 400 feet), wooden pier #6 (4 feet by 280 feet), and railway #3 (40 feet by 485 feet) will all be removed from the project area. The existing railway system will be removed from service once the travel lift has been constructed.  

AVOIDANCE AND MINIMIZATION: According to the applicant, the proposed dredging will remove sediments contaminated with petroleum compounds, metals, and polyaromatic hydrocarbons (PAHs) and will dispose of them in a licensed landfill. In addition, the removal of the marine railway means that ship repair operations will be moved to adjacent uplands on the shipyard. This should result in water quality benefits for the Elizabeth River.

COMPENSATORY MITIGATION: The applicant is not proposing compensatory mitigation.

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.   

Copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website: https://webapps.mrc.virginia.gov/public/habitat/getPDF.php?id=20210332 

AUTHORITY: 

   X   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.
  Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 
    (33 U.S.C. 1413).

 

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:

  No listed/proposed/candidate species and/or designated/proposed critical habitat under the ESA of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended, will be affected.  Based on this “no effect” determination, no further coordination with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) is required.
  The Northern long-eared bat may be affected, but the FWS Information and Planning and Consultation (IPaC) 4(d) determination key was completed and no further coordination with the FWS is required.
   X    There may be an effect to listed/proposed/candidate species and/or designated/proposed critical habitat under the ESA of 1973. The IPaC Official Species List and Species Conclusion Table are attached for review and comment by the FWS and the NMFS.

Additional information might change any of these findings.

HISTORIC AND CULTURAL RESOURCES:

   X   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.
  Historic Resources eligible for inclusion or included in the 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).

  There is no EFH in the Corps area of responsibility. 
   X    The Eastern Branch of the Elizabeth River contains EFH for various life stages of 11 species including butterfish, windowpane flounder, bluefish, dusky shark, black sea bass, summer flounder, red drum, sandbar shark, cobia, king mackerel, and Atlantic Spanish mackerel. The habitat which this project would affect consists of shallow water and deep water habitats. The proposed project is described in Proposed Work and Purpose, above.  The proposed project may affect EFH through the conversion of shallow water habitat, through temporary turbidity caused by piling removal and mechanical dredging, and through noise created by pile driving. Piles will be removed using a vibratory hammer. A turbidity curtain will be used during pile removal. 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, the absence of vegetated wetlands and submerged aquatic vegetation, and substrate that lacks a diverse benthic population. Based on comments from the National Marine Fisheries Service 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/permits-regulations/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) 698-4204 or e-mail: bettina.rayfield@deq.virginia.gov.

   X   The applicant has not submitted concurrence.
  The applicant has submitted concurrence.
  No concurrence is required because the project is not located within Virginia’s Coastal Zone.


VIRGINIA’S SECTION 401 WATER QUALITY CERTIFICATION PROGRAM: The applicant must obtain, from the Virginia DEQ, a Clean Water Act Section 401 Water Quality Certification for any federal license or permit that authorizes an activity that may result in a discharge into waters of the U.S. (40 CFR Part 121).  As the Certifying Authority, the Virginia DEQ may grant, grant with conditions, or deny a certification request.  Alternatively, the Virginia DEQ may waive, expressly or implicitly, its authority to act on a certification request.  In either case, a written notice of waiver from DEQ (expressly waived) or from the Corps (implicitly waived), satisfies the project proponent’s requirement to obtain certification. 

PRE-FILING MEETING (PFM)

   X    The applicant requested a PFM with DEQ on June 11, 2021.
  The applicant has not requested a PFM with DEQ.

COMMENT PERIOD: Comments on this project should be in writing and can be sent by either email to george.a.janek@usace.army.mil or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WRR – George Janek), 803 Front Street, Norfolk, VA  23510-1011, and should be received by the close of business on August 6, 2021. 

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. George Janek at (757) 201-7135 or by email at the address above.

Attachments: 
Species Conclusion Table
Permit Sketches
Official Species List