NAO-2021-02565/ VMRC 21-V1988

Norfolk District, U.S. Army Corps of Engineers
Published Nov. 19, 2021
Expiration date: 12/20/2021

November 19, 2021         
NAO-2021-02565/ VMRC 21-V1988


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

Brad Vanderwarker
Virginia Beach Public Works
2875 Sabre Street, Suite 250
Virginia Beach, VA 23452

PROJECT LOCATION:  The Eastern Shore Drive drainage improvements – Phase I project is in the suburban Shore Drive area of Virginia Beach, Virginia, adjacent to Page Avenue, Vista Circle, Lynnhaven Drive, New Bern Lane, Sand Pine Road and Cape Henry Drive. The center of the project is located at latitude 36.909229 and longitude -76.075574. The project includes portions of Cape Henry Ditch, which runs east-west along the north side of Cape Henry Drive, and the Lynnhaven Drive Canal, which connects to the Cape Henry Ditch and runs north-south, east of West Great Neck Road. The project is located in the Lynnhaven-Poquoson watershed (HUC 02080108).

PROJECT SIZE: 12 acres

NEAREST WATERWAY: Long Creek, a tributary to the Lynnhaven River

LATITUDE AND LONGITUDE: 36.9092, -76.0756

PROJECT DESCRIPTION AND PURPOSE:  The project purpose is to reduce flooding from rainfall and tidal events. The project area was developed without a comprehensive stormwater management system and is frequently flooded by rainfall events. 145 acres of the total 204-acre drainage basin are located within the 100-year floodplain and are prone to tidal flooding caused by tropical storms and northeasters.

The proposed drainage improvements include the following: widening, deepening and enhancements to Cape Henry Ditch; improvements to the existing stormwater collection systems; an automated tide gate; three stormwater pumping stations; a new outfall to Long Creek at the Lynnhaven Municipal Marina, including bulkhead replacement; outlet protection at an existing outfall south of the Lynnhaven Marine Boatel; street restoration; automated control systems for the pump stations and tide gate; roadway elevation; and utility adjustments.

This drainage improvement project will result in the following impacts. Permanent non-tidal wetland impacts will be 76 square feet of palustrine scrub-shrub (PSS); 424 sq. ft. of palustrine emergent (PEM); and 206 square feet of jurisdictional ditch. Temporary non-tidal impacts will be 2,278 sq. ft. of PSS wetlands and 6,055 sq. ft. of PEM wetlands.

The project will impact the following tidal wetlands: 9,840 sq. ft. of permanent estuarine scrub-shrub (ESS) and 891 sq. ft. of temporary ESS wetlands; 25,023 sq. ft. of permanent estuarine emergent (EEM) and 1,145 sq. ft. of temporary EEM wetlands; 17,093 of permanent estuarine unconsolidated bottom (EUB); 516 sq. ft. of permanent estuarine unconsolidated shore (EUS); and 2,554 sq. of permanent estuarine open water (EOW) and 1,126 sq. ft. of temporary EOW impacts.

The total amount of permanent non-tidal wetland impacts is 0.01 acres, and the total amount of temporary non-tidal impacts is 0.19 acres. Permanent tidal impacts are 1.26 acres, and temporary tidal impacts are 0.08 acres.

AVOIDANCE AND MINIMIZATION:  The applicant considered locating pump station outfalls to discharge north to the Chesapeake Bay instead of south to Long Creek, but this would have resulted in additional wetland impacts. Approximately 0.19 acres of permanent wetland impacts were avoided due to design alternatives implemented within the western extent of the Cape Henry Ditch. In addition, rip rap placement within the ditch has been limited to areas where existing rip rap is located, soil stabilization matting, and wetland plantings will be used on proposed side slopes to minimize sedimentation downstream and fill for outfall protection has been limited to the minimum required to provide the necessary erosion protection.

COMPENSATORY MITIGATION: The applicant is proposing to mitigate for unavoidable permanent vegetated wetland impacts with the purchase of wetland mitigation bank credits. Mitigation is not being proposed for impacts to estuarine open water (EOW) or estuarine unconsolidated bottom (EUB) because these impact areas will remain EOW or EUB. No mitigation is being proposed for the impacts to jurisdictional ditches. The applicant is proposing to purchase 0.01 acres of non-tidal wetland credits and 0.91 acres of tidal wetland credits, with scrub-shrub impacts compensated for a 1.5:1 ratio and emergent impacts compensated for at a 1:1 ratio.

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 Virginia Beach Wetlands Board.

A copy of the joint permit application (JPA) can be found on the Virginia Marine Resources Commission’s website:

Enter the VMRC permit number, which is 2021-1988, to review the JPA.


(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.
(  )        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:

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.


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 Lynnhaven River contains EFH for various life stages of the 11 species including little skate, Atlantic herring, red hake, windowpane flounder, winter skate, clearnose skate, bluefish, Atlantic butterfish, scup, summer flounder, and black sea bass. The habitat which this project would affect consists of shallow water at the outfalls, intertidal wetlands within ditches, and open water areas. The proposed project is described in Proposed Work and Purpose, above. Most the proposed work is proposed in tidal drainage ditches and outfalls; impacted estuarine open water and unconsolidated bottom areas will remain the same habitats after construction is completed. 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 temporary increases in turbidity, and the lack of anadromous fish spawning habitat. 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: .  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:

The applicant has not submitted concurrence.

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.

COMMENT PERIOD:  Comments on this project should be in writing and can be sent by either email to by 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 December 20, 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.

Permit drawings
Species Conclusion Table
FWS 4(d) letter
Official species letter