CENAO-WRR November 22, 2022
NAO-2006-07101 / JPA 22-V1936
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
JCC, LLC
c/o: Dean Vincent
14700 Village Square Place
Midlothian, VA 23112
PROJECT LOCATION: Off Liberty Ridge Parkway, east of Colby Swamp and west of Centerville Road in James City County, VA (TAX PARCEL # 3030100002).
PROJECT SIZE: 307.5 acres
NEAREST WATERWAY: Adjacent to Colby Swamp in the headwaters of Gordon Creek, a tributary to the Chickahominy River (Hydrologic Unit Code 02080206)
LATITUDE AND LONGITUDE: 37.3094°N; -76.8114°W
PROJECT DESCRIPTION AND PURPOSE: In September 2006, JPA # 06-V2342 was submitted requesting construction of a 535-acre residential development known as Liberty Ridge Subdivision. Standard Permit authorization was granted May 2007, authorizing impacts to 2.34 acres of non-tidal palustrine forested wetlands and 177 linear feet of stream channel. The applicant constructed Sections 1 and 2 of the residential development; however, due to the 2008 recession, Sections 3, 4, 5, and 6 were not completed prior to permit expiration. As such, the applicant requests new authorization for permanent impacts to 1.50 acres of palustrine forested wetlands, 0.04 acres of palustrine forested conversion, 287 linear feet of perennial stream channel, and 275 linear feet of intermittent stream channel so the remaining development can proceed. In addition to these impacts the project proposes temporary impacts to 52 linear feet of stream channel.
The purpose of the project is to provide residential housing in James City County.
AVOIDANCE AND MINIMIZATION: The proposed site design is limited by the recorded plat and approvals received from James City County at the time the development was originally permitted. Changes to the lot layout, BMP locations, or road crossing locations would require new review by the County under current zoning ordinances and local regulations. Such a review would result in a significant reduction in the number of developable lots and would make the proposed development economically not viable to meet the applicant’s project purpose. The proposed project stormwater design incorporates a more centralized treatment approach, locating BMPs within common space, rather than using distributed treatment with BMPs located on private lots. This approach is utilized due to the ability to better ensure functioning BMPs in the future since they will be maintained by the homeowners’ association rather than individual lot owners. The proposed stormwater BMP locations are limited by the topography of the site, with BMPs needing to be present within the low areas where some jurisdictional aquatic resources are present. However, the avoidance of impacts to jurisdictional aquatic resources was still accomplished by locating seven (7) out of ten (10) BMPs outside of jurisdictional aquatic resources, including a redesign of a BMP with an impact originally permitted in 2007. Notwithstanding the limitations local approvals places on the redesign of the project, a discussion of onsite avoidance and minimization for each proposed impact is provided below.
Impact P3 (13,456 SF of PFO wetland) is required for the construction of Colonnade Parkway and a Stormwater Management (SWM) BMP. Due to the orientation of the wetlands in this location, there is no way to avoid impacts with the road crossing. Moving Colonnade Parkway north would reduce the proposed impacts but would result in the loss of lots 68-70. The minimum lot size under current zoning for this parcel (A1-General Agricultural) is three acres. Shifting the road north would reduce these lots to under three acres, requiring them to be removed from the project. Removing these lots from the project is not practicable.
Impact P4 (5,969 SF of PFO wetland) is required for the construction of Arbor Place and a SWM BMP. It would not be possible to avoid this impact by shifting the road east due to road setback requirements from Centerville Road, Removing the road completely would result in no access to lots 6-9 and the subsequent elimination of these lots. The loss of four lots affects the economic viability of the development project.
Impact P7 (8,803 SF of PFO wetland) is required for the construction of one of the SWM BMP’s. The SWM BMP needs to be located in a topographically low position to receive runoff from Colonnade Parkway and impervious area from the development.
Impact P8 (25,072 SF of PFO wetlands, 131 LF of R3 stream) is required for the construction of Colonnade Parkway. Due to the orientation of the wetlands present on this section of the project, impacts are unavoidable to access the northern portion of the project. The chosen location is one of the narrower sections of the wetlands, so relocating the crossing would likely result in a greater impact area.
Impact P9 (4,645 SF of PFO wetlands, 130 LF of R4 stream) has been reduced from the originally permitted design, notwithstanding the additional stream impact resulting from the identification of stream resources in 2021. The original permitted design resulted in the impact to 16,924 SF of PFO due to the construction of a SWM BMP within wetlands. In the proposed application, the redesigned SWM BMP has been moved to the south out of the wetlands avoiding impact. The remaining impact is required for the construction of Colonnade Parkway. Rerouting the road to avoid this impact would remove part of lots 136 and 137 and potentially lot 138. This would cause the lot sizes to be less than three acres, resulting in the lots being removed from the project. Removing these lots is not practicable.
Impact P10 (5,600 SF of PFO wetland, 156 LF of R3 stream, 125 LF of R4 stream) is required for the construction of Magnolia Ridge. There is no way to construct Magnolia Ridge without impacting these resources. Shifting the road north is not an option because due to the project boundaries, the road cannot access lots 114-117. Removing this road from the project would eliminate lots 114-117 from the project and is not a practicable alternative.
Impact P12 (1,590 SF of PFO wetlands, 20 LF of R4 stream) is required for grading associated with the Arbor Place cul de sac as well as the driveway for lot 8. There is no way to access lot 8 without impacting these resources. Moving the cul-de-sac to the north to avoid the impact completely would eliminate lot 7 in addition to lot 8.
COMPENSATORY MITIGATION: Pursuant to the May 2007 authorization, the permittee purchased 4.68 acres of wetland credit from Hampton Roads Airport Mitigation Bank. Based on taken impacts from Section 1 & 2, only 2.96 credits remain in balance. The applicant proposes to apply the remaining balance towards Section 3, 4, 5, and 6. Total wetland impacts for the proposed project include 1.5 acres of PFO wetlands. Permanent loss to PFO wetlands shall be mitigated at a 2:1 ratio and conversion impacts at a 1:1 ratio, bringing the required mitigation to 3.4 wetlands credits. Less the 2.96 credits purchased for the 2007 permit, a total of 0.08 wetland credit are required to make up the difference. The applicant proposes to purchase the additional required mitigation from an approved mitigation bank serving watershed HUC 02080206.
Similar to the wetland credits, the permittee contributed $101,910.00 in 2007 to the Virginia Aquatic Resource Trust Fund for a total of 276 linear feet of stream mitigation credit. Those credits were determined using SAAM. The permittee has since compared previous SAAM evaluations to current USM evaluations and determined that the 276 SAAM credits previously purchased equated to 251 USM credits. Total compensation requirements for the current proposed project are 726 credits. Subtracting 251 credits previously purchased leaves a remaining need for 475 stream credits in order to compensate for impacts related to Section 3, 4, 5, and 6 of the current proposal. At this time, there are only 329 stream credits available in the watershed. Since VARTF has no advanced credits available, the applicant is proposing to purchase the remaining 146 stream credits from an approved bank in the adjacent watershed HUC 02080107. Should additional bank credits become available before a permit decision is finalized, the applicant will exhaust all available options in watershed HUC 02080206 before moving outside.
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 (https://webapps.mrc.virginia.gov/public/habitat/additionaldocs.php?id=20221936).
AUTHORITY:
( ) 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.
Additional information might change any of these findings.
HISTORIC AND CULTURAL RESOURCES:
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.
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 randy.l.steffey@usace.army.mil, 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 December 22, 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
Mr. Randy Steffey at randy.l.steffey@usace.army.mil or by phone at 757-201-7579.