NAO-2019-00517-TREC

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

APPLICANT
Sharpless Enterprises LLC
Attn: Carl Bivens
2801 Centerville Road, 1^st Fl., PMB 811
Wilmington, DE 19808

PROJECT LOCATION: 
The project site is located on the northside of Wellington Road in Prince William County, Virginia (38.7893, -77.5731).

PROJECT SIZE: approximately 181 acres

NEAREST WATERWAY: Broad Run tributaries

LATITUDE AND LONGITUDE: 38.7893, -77.5731

PROJECT DESCRIPTION AND PURPOSE: 
This project involves the construction of a proposed restricted data center campus and associated infrastructure. The project site was formerly used as a military facility, as such was subject to the Resource Conservation Recovery Act of 1976 (RCRA). Additionally, this project and site currently has a valid U.S. Army Corps of Engineers (Corps) 22-SPGP-RCIR permit verification and, an associated Virginia Department of Environmental Quality (VDEQ) Virginia Water Protection Permit (VWP).  Due to past military installation use and RCRA activity, this site has experienced ground disturbance and resource impacts. Since issuance of the 22-SPGP-RCIR verification, the applicant’s proposed footprint and project purpose has not changed. However, the Corps regulations regarding the definition of waters of the U.S. (WOTUS), have been revised. As such, aquatic resources not regulated under previous regulations are now regulated by the Corps. The change in regulation has increased the regulated impacts on site by 0.89 acre of wetland and 1,024 linear feet of stream channel (55 linear feet are currently piped). 

AVOIDANCE AND MINIMIZATION: 
In an effort to avoid impacts to WOTUS. the applicant has evaluated multiple offsite and onsite alternatives.  A detailed alternatives discussion can be found on pages 14-29 of the joint permit application (link below). Considerations that were made during site selection include the need for an available water supply, existing power capabilities and existing fiber/communication lines and acreage. Onsite constraints include topography, the location of WOTUS onsite, existing infrastructure and locality restrictions such as set-back requirements and ingress/egress locations. After evaluating multiple alternatives, the applicant’s preferred alternative avoids the larger forested wetland (PFO) and intermittent stream complex that is located on the eastern portion of the project site.

COMPENSATORY MITIGATION:
Credit purchase for the permanent loss of 0.53 acre of PFO will occur at a 2:1 ratio and compensation for the permanent loss of 0.87 acre of emergent wetland (PEM) will occur at a 1:1 ratio. In total, compensation for the permanent loss of wetlands will occur through the purchase 1.93 wetland credits from Dog Branch Mitigation Bank. 
Utilizing the Corps and VDEQ Unified Stream Methodology, compensation for the permanent loss of 1,404 linear feet of intermittent and ephemeral stream channel will occur through the purchase of 936 stream credits. The stream credits will be purchased from the Dog Branch Mitigation Bank.
Please note that all credit purchases have been completed due to requirements of the previous VDEQ and Corps permit authorization/verification.
The applicant has obtained an Individual Section 401 Water Quality Certification from the VDEQ 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/getADD.php?id=185157

AUTHORITY:
Sections 401 and 404 of the Clean Water Act (Public Law 95-217) and Title 62.1 of the Code of Virginia.

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 (CWA)).
The Corps 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 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 are listed, proposed and candidate species under the ESA of 1973, listed and potentially present in the area of the project site. 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). The determination key has for the Northern Long-eared bat has been completed and submitted for concurrence. Via this public notice the conferencing regarding the Tri-colored bat is being initiated.  Please see the attached species conclusion table (SCT). Additional information might change any of these findings.

HISTORIC AND CULTURAL RESOURCES:
The project will have no adverse effect on historic resources.  The project and a no adverse effect determination were previously coordinated with the Virginia Department of Historic Resources (VDHR) and the VDHR concurred with the Corps no adverse effect finding.  While there are no changes in resources present there is a change in the permit area determination, therefore this project will be re-coordinated with the VDHR.
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 VDEQ, 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 VDEQ-OEIR at (804) 659-1915 or e-mail: bettina.rayfield@deq.virginia.gov.
The applicant has submitted concurrence.

VIRGINIA’S SECTION 401 WATER QUALITY CERTIFICATION PROGRAM:
The 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 VDEQ. 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 anna.r.lawston@usace.army.mil, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WRR-Anna Lawston), 803 Front Street, Norfolk, VA  23510-1011, and should be received by the close of business on Sunday, December 10, 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 Corps.  Information that is submitted in connection with this Public Notice cannot be maintained as confidential by the Corps.  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, please contact Anna Lawston at anna.r.lawston@usace.army.mil.

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