NAO-2019-01193

FEDERAL PUBLIC NOTICE

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

APPLICANTS

Don G. Gill, County Administrator
Lancaster County Board of Supervisors
8311 Mary Ball Road
Lancaster, VA 22503

Peter D. Anzo, Manager
RL PROP. 2011 Investments, LLC
40 Windjammer Lane
White Stone, VA 22578

David J. Simons, Member
The Landing Owners Association
1181 Venter Road
Aylett, VA 23009

PROJECT LOCATION:  The project is located on the Rappahannock River at Westland Beach, Windmill Point Marina, and the Landing Owners Association at the end of Windmill Point Road, in Lancaster County, Virginia.

PROJECT SIZE: 3.40 acres

NEAREST WATERWAY: Rappahannock River

LATITUDE AND LONGITUDE: 37.6157, -76.2935

PROJECT DESCRIPTION AND PURPOSE:  The applicants propose to remove concrete debris and portions of existing stone groins; construct five armor stone breakwaters, two armor stone spurs, beach nourishment; and add new plantings. The project would result in the loss of 0.57 acre of subaqueous bottom and 0.02 acre of tidal non-vegetated wetlands (covering existing stone groins). In addition, the ecological restoration would include 2.81 acres of beach nourishment and 0.96 acre of new beach and dune plantings.

The purpose of the project is to ecologically restore and stabilize 1,324 linear feet of eroding shoreline, beach, dune, and uplands at Westland Beach (public beach), Windmill Point Marina, and the Landing Owners Association (condominiums). The project site is a high energy shoreline with a south-southeast fetch of over 40 miles through the Chesapeake Bay to the Atlantic Ocean, and the shoreline has eroded approximately 110 feet over the last ten years. The erosion has caused concrete foundations and other structures to collapse into the Rappahannock River.

AVOIDANCE AND MINIMIZATION: All concrete debris resulting from the collapsed structures would be removed and disposed of in an approved upland location. Only clean broken concrete, free of any rebar or wire mesh, would be used as part of the core base for the proposed breakwaters. The existing failed stone groins would be removed and the stone would be reused as core stone base for the proposed breakwaters. The proposed armor stone breakwater system would protect the shoreline from further erosion and restore the shoreline to a natural state. A turbidity curtain would be installed and maintained throughout the construction process to minimize any sedimentation and bottom disturbance outside of the construction area.

COMPENSATORY MITIGATION: The applicant proposes on-site permittee responsible mitigation by removing the concrete rubble, and ecologically restoring the shoreline with 2.81 acres of beach nourishment and 0.96 acre of new beach and dune plantings. A written monitoring report would be submitted at the end of the first full growing season following planting, and after the second year of establishment. The monitoring would be undertaken between June and September of each year and would include at a minimum: the project location, the Corps project number, representative photos of the site, and a brief statement on the success of the project.

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 has obtained a permit from the Lancaster County Wetlands Board and must obtain a permit from the Virginia Marine Resources Commission.

A copy of the joint permit application can be found by searching for application number 20222229 on the Virginia Marine Resources Commission’s website: https://webapps.mrc.virginia.gov/public/habitat/index.php.

AUTHORITY:

(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 Fish and Wildlife Service and the National Marine Fisheries Service (NMFS). Additional information may 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 Rappahannock River contains EFH for the adult, juvenile, eggs, larvae, and neonate life stages of nine (9) species including Little Skate, Atlantic Herring, Red Hake, Winter Hake, Clearnose Skate, Windowpane Flounder, Sandbar Shark, Bluefish, and Summer Flounder. The proposed project is described in Proposed Work and Purpose, above. The habitat which this project would affect consists of shallow water and intertidal non-vegetated wetlands. This is an anadromous fish use area; however, the waterway width of the Rappahannock River is approximately four miles at the project site and should allow safe passage. The five-year composite from the Virginia Institute of Marine Science submerged aquatic vegetation website indicates that the project will be outside of intermittent submerged aquatic vegetation on the west end and within intermittent submerged aquatic vegetation on the east end, however, these beds have not been observed since the 2018 survey. 

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; minimal changes in water temperature or salinity caused by the proposed work; and the absence of submerged aquatic vegetation in the last three years of surveys. Based on comments from the NMFS 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: bettina.rayfield@deq.virginia.gov.

The applicant has not submitted concurrence.

VIRGINIA’S SECTION 401 WATER QUALITY CERTIFICATION PROGRAM: The Clean Water Act (CWA) Section 401 Certification Rule (Certification Rule, 40 CFR 121), effective September 11, 2020, requires certification, or waiver, for any license or permit that authorizes an activity that may result in a discharge. The scope of a CWA Section 401 certification is limited to ensuring that a discharge from a Federally licensed or permitted activity will comply with water quality requirements. To comply with the Virginia Section 401 Water Quality Certification Program and the Certification Rule, the applicant is responsible for adhering to the procedures outlined in the Certification Rule when requesting certification from the certifying authority, the Virginia Department of Environmental Quality. In accordance with Certification Rule part 121.12, the Corps will notify the U.S. Environmental Protection Agency Administrator when it has received a Department of the Army (DA) permit application and the related certification. The Administrator is responsible for determining whether the discharge may affect water quality in a neighboring jurisdiction. The DA permit may not be issued pending the conclusion of the Administrator’s determination of effects on neighboring jurisdictions.

COMMENT PERIOD:  Comments on this project should be in writing and can be sent by either email to nancy.p.davis@usace.army.mil, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WRR, Nancy Davis), 803 Front Street, Norfolk, VA  23510-1011, and should be received by the close of business on December 12, 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. Nancy Davis, nancy.p.davis@usace.army.mil, (757) 401-8913.