August 5, 2022
NAO-2021-01633/ VMRC # 22-V0510
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
Mr. Steven Kremer
Bluewater Development LLC
9919 Stephen Decatur Highway
Ocean City, MD 21842
PROJECT LOCATION: Cherrystone Campground, 1511 Townfield Drive Cape Charles, Virginia
PROJECT SIZE: The project site is approximately four acres.
NEAREST WATERWAY: Chesapeake Bay
LATITUDE AND LONGITUDE: 37.287003, -75.015642
PROJECT DESCRIPTION AND PURPOSE: Bluewater Development LLC proposes to construct breakwaters with tombolo fill and low sills with beach nourishment and plantings at Cherrystone Campground, 1511 Townfield Drive Cape Charles, Virginia. The rock sill would impact 0.15 acres of tidal wetlands and 0.22 acres of open water. The fill for the sill and nourishment would impact 1.06 acres of non-vegetated tidal wetlands. The rock breakwater would impact 0.25 acres of open water and the tombolo would impact 0.35 acres of non-vegetated tidal wetlands and 0.53 acres of open water. A total of 1.56 acres of non-vegetated tidal wetlands and 1.00 acre of tidal open water would be converted by the proposed project. The applicant proposes to excavate sand from an onsite pond for the beach nourishment. The project may also impact Submerged Aquatic Vegetation (SAVs) that are present during some years.
The purpose of this project is to provide a lower impact marsh and upland shoreline protection for a severely eroding area. The combination of the proposed marsh establishment and supplement along with offshore sills and breakwaters provide for a good balance between soft and hardened shoreline protection.
AVOIDANCE AND MINIMIZATION: The applicant indicated that during initial design throughout 2020 and 2021, SAVs were not present within the area. The applicant planned this project due to substantial erosion from storm events. The low sill was originally designed as one long rock structure, but at the request of the agencies, the applicant has cut 5-foot-wide habitat gaps at approximately 100-foot intervals.
COMPENSATORY MITIGATION: The applicant proposes to plant 0.21 acres of Big Cordgrass (Spartina cynosuroides) and 0.08 acres of American Beach Grass (Ammophila breviligulata). No compensatory mitigation is proposed.
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.
A copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website 22-0510
(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: 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. Additional information might change any of these findings.
HISTORIC AND CULTURAL RESOURCES: 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 Chesapeake Bay in this location contains EFH for juvenile and adult life stages of 16 species, including Atlantic herring (Clupea harengus), Atlantic Sharpnose Shark (Rhizoprionodon terraenovae), Sand Tiger Shark, scup (Stenotomus chrysops) red hake (Urophycis chuss), windowpane flounder (Scopthalmus aquosus), dusky shark (Charcharinus obscurus), Butterfish (Peprilus triacanthus), Bluefish (Pomatomus saltatrix) Black sea bass (Centropristis striata), Summer flounder (Paralichthys dentatus), red drum (Sciaenops ocellatus), Sandbar Shark, Cobia (Rachycentron canadum), King mackerel (Scomberomorus cavalla),Atlantic Spanish mackerel (Scomberomorus maculatus). The habitat which this project would affect consists of subaqueous bottom, and nonvegetated wetlands. The proposed project is described in Proposed Work and Purpose, above. The proposed project involves construction of breakwaters, a low riprap sill and beach nourishment with plantings. A total of 1.56 acres of non-vegetated tidal wetlands and 1.00 acre of tidal open water would be converted by the proposed project, which would impact potential EFH habitat. 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 nature of the conversion impacts. The work would cause minimal increases in turbidity and no change in water temperature or salinity. The work is not proposed to impact vegetated wetlands or anadromous fish spawning habitat. The area has been mapped for SAVs in the past but contained a small area of SAVs when the project was being designed in 2020. The SAV areas are mapped on the drawings, but the potential impacts have not been quantified. 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) 659-1915 or e-mail: email@example.com. The applicant has not yet 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.
Pursuant to 33 CFR 325.2(b)(1)(i), this Public Notice serves as the Corps’ CWA § 401(a)(2) notification to the Administrator of the Environmental Protection Agency (EPA). Pursuant to 40 CFR 121.11-13, the EPA shall notify the Corps, the Virginia DEQ, and the applicant, within 30 days of receipt of the application and certification, if the Regional Administrator determines that the proposed discharge may affect the quality of the waters of any neighboring jurisdiction.
COMMENT PERIOD: Comments on this project should be in writing and can be sent by either email to firstname.lastname@example.org, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN: CENAO-WRR), 803 Front Street, Norfolk, VA 23510-1011, and should be received by the close of business on September 3, 2022.
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 Ms. Melissa Nash at email@example.com or 757-201-7489.
Attachments: Drawings, Official Species List and Species Conclusion Table