NAO-2020-00669 (Chesapeake Shore)

Norfolk District, U.S. Army Corps of Engineers
Published Jan. 26, 2022
Expiration date: 2/25/2022

January 26, 2022

The District Engineer received a prospectus to establish a wetland compensatory mitigation site for federal and state permits as described below:

Bay Creek South, LLC
Attention: Manager
1 Clubhouse Way 
Cape Charles, VA 23310

WATERWAY AND LOCATION OF THE PROPOSED WORK:  The proposed compensatory mitigation site is located on approximately 298 acres of abandoned golf course, forest, and agricultural land. The site is located along Old Plantation Creek a tributary to the Chesapeake Bay in Northampton, Virginia. 

PROPOSED WORK AND PURPOSE:  The Bay Creek South, LLC (Sponsor) proposes to establish, design, construct, and operate a compensatory wetland mitigation site to be known as the Chesapeake Shore Mitigation Bank (Bank). The purpose of the Bank is to provide off-site compensatory mitigation for projects that result in unavoidable impacts to wetlands and other waters of the United States in the Lower Chesapeake Bay Drainage Basin.  

The Sponsor is proposing to construct the Bank in one (1) phase. The Sponsor is proposing the following mitigation activities. 

Proposed Mitigation Activities

The Sponsor proposed, for purposes of Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act, that the geographic service area (GSA) of this Bank would include the National Watershed Boundary Dataset Hydrologic Unit Codes 02080111, 02080108, and 02080102. This proposed GSA would include portions of the cities of Virginia Beach, Hampton, Poquoson, and the counties of Northampton, Accomack, Gloucester, Matthews, Middlesex, Lancaster, and Northumberland.   

Oversight of this Bank would be by an existing group of federal and state agency representatives. This interagency oversight group is known as the Interagency Review Team (IRT). The Norfolk District of the U.S. Army Corps of Engineers (USACE) and the Virginia Department of Environmental Quality (DEQ) chair the IRT.  

This Bank may be one of a number of practicable options available to applicants to compensate for unavoidable wetland impacts associated with permits issued under the authority of Section 404 and 401 of the Clean Water Act (Public Law 95-217) in Virginia.
The actual approval of the use of this Bank for a specific project is the decision of the USACE pursuant to Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act and/or by DEQ pursuant to Section 401 of the Clean Water Act and Title 62.1 of the Code of Virginia. USACE and DEQ provide no guarantee that any particular individual or general permit will be granted authorization to use this Bank to compensate for unavoidable wetland impacts associated with a proposed permit. Authorization by the Virginia Marine Resources Commission may also be required for its use for specific projects.

AUTHORITY:  Issuance of a public notice regarding proposed mitigation sites is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 325 and 332).

FEDERAL EVALUATION OF PROPOSAL:  USACE 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 this proposed mitigation site.  This is not an application for work in Waters of the United States. USACE in evaluating this proposal will consider any comments received. Comments are used to assess impacts on endangered species, historic properties, water quality, conservation, economics, aesthetics, general environmental concerns, wetlands, 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, and consideration of property ownership.  

Preliminary review indicates that: (1) no environmental impact statement would be required; (2) after conducting the NAO ESA Project Review Process, there may be an affect to listed and/or candidate species under the Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884, as amended). Based on this determination, further coordination with the Fish and Wildlife Service may be required; and (3) known resources potentially eligible for inclusion in the National Register of Historic Places are in or near the permit area or would likely be affected by the proposal. Additional information might change any of these findings

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 National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH). Old Plantation Creek contains Essential Fish Habitat (EFH) for the eggs, larvae, neonate, juvenile and adult life stages of fourteen (14) species including little skate (Leucoraja erinacea), Atlantic herring (Clupea harengus), red hake (Urophycis chuss), windowpane flounder (Scopthalmus aquosus), winter skate (Leucoraja ocellata), clearnose skate (Raja eglanteria), sandbar shark (Carcharhinus plumbeus), Atlantic sharpnose shark (Rhizoprionodon terraenovae), Sand tiger shark (Carcharias taurus), bluefish (Pomatomus saltatrix), Atlantic butterfish (Peprilus  triacanthus), scup (Stenotomus chrysops), summer flounder (Paralichthys dentatus), and black sea bass (Centropristis striata).

The habitat which this Bank would affect consists of intertidal salt marsh, intertidal mud flat, shallow tidal water, intertidal estuaries, non-tidal wetlands, and uplands. These tidal habitats are used by the above species during multiple life stages. The proposed Bank is described in Proposed Work and Purpose, above, and in the Complete Prospectus in RIBITS. The restoration and enhancement of these tidal and non-tidal habitats may be beneficial to these species. Our assessment of the Bank 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/changes in water temperature or salinity caused by the proposed work/the absence of vegetated wetlands, submerged aquatic vegetation, and anadromous fish spawning habitat/ existing poor water quality/unsuitable substrate. Based on comments from the National Marine Fisheries Service in response to this public notice, further EFH consultation may be necessary.

COMMENT PERIOD:  Comments on this Bank should be made in writing, addressed to the Norfolk District, Corps of Engineers (ATTN:  Herman W. Hudson III), 9100 Arboretum Pkwy Suite # 235 Richmond, Virginia 23236 or to and should be received by the close of business on February 25, 2022. The Prospectus and Drawings can be viewed at,278:P278_BANK_ID:5772.

If you have any questions about this Bank, please contact:

Herman W. Hudson III, PhD
9100 Arboretum Pkwy 
Suite # 235
Richmond, Virginia 23236