NAO-2005-04213 (SMM Southeast LLC Bulkhead/Dredging Project, Chesapeake, VA)

Published Nov. 24, 2023
Expiration date: 12/24/2023

November 24, 2023     

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

SMM Southeast, LLC
4300 Buell Street
Chesapeake, Virginia 23324

PROJECT LOCATION:  4300 Buell Street, Chesapeake, Virginia

PROJECT SIZE: 4.40 acres

NEAREST WATERWAY: Mill Dam Creek - Southern Branch Elizabeth River

LATITUDE AND LONGITUDE: 36.779156, -76.29531

The applicant proposes to stabilize the existing failing bulkhead surrounding the existing man-made slipway. This project includes two activities: (1) fill the existing slipway with dredged material obtained from the waterfront adjacent to the slipway, and (2) install 230 linear feet of new vinyl bulkhead seaward of the existing failing bulkhead and slipway. The project will improve the functionality of the site to facilitate on-going operations through the construction of the new bulkhead and filling of the existing man-made slipway. The proposed activities will result in unavoidable, permanent impacts to 2,613 square feet (0.06 acre) of tidal vegetated wetlands, 75,155 square feet (1.73 acre) of subaqueous bottom for fill, and 76,517 square feet (1.76 acre) of subaqueous bottom for dredging. The applicant is requesting a 10-year permit that will allow for periodic maintenance dredging in order to maintain a maximum dredge depth of -12 feet (MLW) to meet the needs for facility operations.

In an effort to minimize impacts, the applicant has minimized the extent of open water impacts within the existing slipway to only those necessary to stabilize the failing bulkhead, as well as avoiding and minimizing impacts to vegetated wetlands located along the eastern boundary of the adjacent slipway by limiting the extent of the project footprint.

The applicant will compensate for 0.06 acre of tidal emergent wetland impacts by purchasing wetland credits from a commercial wetland bank.

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:

(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).
( )       Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408 (Section 408).

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.

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 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.

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.

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).

Mill Dam Creek – Southern Branch of the Elizabeth River contains EFH for various life stages of eight (8) species including Bluefish, Windowpane Flounder, Black Sea Bass, Clearnose Skate, Atlantic Herring, Summer Flounder, Atlantic Butterfish, and Red Hake.  The habitat, which this project would affect, consists of non-vegetated intertidal wetlands and tidal open water. The proposed project is described in Proposed Work and Purpose, above. The applicant proposes to install a turbidity curtain outside the limits of dredging and later relocate the turbidity curtain to a position outside of the proposed sheet wall and bulkhead until fill operations are completed. 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 and changes in water temperature, and the lack of submerged aquatic vegetation and anadromous fish spawning habitat (due to unsuitable substrate and shallow water depths). Based on comments from the NMFS in response to this public notice, further EFH consultation may be necessary.

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:

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:

The applicant has submitted concurrence.

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.

Comments on this project should be in writing and can be sent by either email to, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WRR, Katherine T. Hollingsworth), 803 Front Street, Norfolk, VA  23510-1011, and should be received by the close of business on December 26, 2023.

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 Mrs. Taylor Hollingsworth at or by telephone at (757) 201-7044.