September 12, 2023
CENAO-WRR
NAO-2017-00737
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
Mr. Alan Resh
Cobblestone Cay, LLC
P.O. Box 8368
Virginia Beach, VA 23454
PROJECT LOCATION: An approximately 10.4-acre mostly undeveloped property (Map parcel 0390000000231 and a portion of 0390000000200) that fronts on the north side of Elbow Road, approximately 0.8 miles east of the intersection of Elbow Road and Centerville Turnpike in Chesapeake, Virginia.
PROJECT SIZE: Approximately 10.4 acres
NEAREST WATERWAY: Stumpy Lake and Gum Swamp
LATITUDE AND LONGITUDE: LAT 36.740299°, LONG -76.172287°
PROJECT DESCRIPTION AND PURPOSE: To construct 15 single-family home lots in the proposed Cobblestone Cay residential development. The development would result in the permanent loss of 1.94 acres of non-tidal, forested wetlands. The development plan depicts two cross-roads that terminate at stub roads to the east. The applicant claims that these stub roads are required by the City of Virginia Beach to provide potential future access points for emergency vehicles, etc. The applicant says that they do not own the property to the east and would develop the current project even if the property to the east is never approved for development.
AVOIDANCE AND MINIMIZATION: The original Cobblestone Cay development concept envisioned the construction of 29-32 single family lots. After the wetland delineation confirmation, the project was revised to 23 total lots and proposed impacts to 4.7 acres of wetlands. The development plan initially submitted with the Joint Permit Application proposed 18 single family lots which would have resulted in 3.2 acres of permanent non-tidal forested wetland impacts for development of 7 of the lots and their road access. The most recent revised plan proposes 15 single family home lots that would result in the permanent loss of 1.94 acres of non-tidal, forested wetlands for development of 5 single family homes, an access road, and a portion of a multi-use trail.
COMPENSATORY MITIGATION: The applicant proposes to purchase credits from an approved mitigation bank that covers the service area where the project is located at a 2:1 ratio for unavoidable impacts to non-tidal, forested wetlands.
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 DEQ issued a Virginia Water Protection Permit, General Permit WP4, on August 03, 2023.
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/getPDF.php?id=20222024).
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 under the ESA of 1973. The U.S. Fish and Wildlife Service (FWS) Information and Planning and Consultation (IPaC) Official Species List and Species Conclusion Table are attached for review and comment by the FWS and the National Marine Fisheries Service (NMFS).
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).
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/our-programs/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 david.a.knepper@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 October 12, 2023.
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. David Knepper at david.a.knepper@usace.army.mil or (757) 201-7488.
Attachments: