December 15, 2023
CENAO-WRR
NAO-2008-02007
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
Mr. George Kemp
KempDel, Inc.
2312 Croix Drive
Virginia Beach, VA 23451
Mr. Craig Reilly
RIXRE2, LLC
820 West 51st Street
Norfolk, VA 23508
PROJECT LOCATION:
The project site is located at 1672 Nimmo Parkway, near the intersection with Seaboard Drive in Virginia Beach, VA.
PROJECT SIZE:
The total developed area is anticipated to be 41.95 acres and the proposed disturbed area is anticipated to be 46.07 acres within the 110.6-acre site.
NEAREST WATERWAY: West Neck Creek
LATITUDE AND LONGITUDE: 36.763191, -76.032115
PROJECT DESCRIPTION AND PURPOSE:
The applicant proposes permanent impacts to 4.40 acres of palustrine forested wetlands and the permanent conversion of 0.06 acres of palustrine forested wetlands to palustrine emergent wetlands for the construction of roads, building lots, a stormwater pond, a Floodplain Mitigation Area (FMA), and infrastructure associated with the Nimmo Quay 123-lot, single-family residential subdivision. The project includes a 120-ft bridge over Hunt Club tributary. The applicant's stated purpose is to provide single family home lots within a subdivision/community for home builders to build 3-4 bedroom and 2.5 bath homes priced in the $700,000-$750,000 range to supply Virginia Beach’s growing population.
AVOIDANCE AND MINIMIZATION:
The Nimmo Quay residential subdivision was previously permitted in 1998, 2003, and 2015, but has not been constructed. The general concept for development has not changed since 1998; however, the applicant proposed a reduction in building lots, which reduced the wetland impacts from 10.78 acres in 1998, 7.2 acres in 2003, and then 4.4 acres in 2015. The Corps authorized 4.4 acres of impacts for this subdivision in 2015. In 2020, the applicant submitted a revised project and requested a permit modification to impact 7.54 acres of wetlands for the proposed subdivision, because the City of Virginia Beach required the applicant to reconfigure the stormwater management plans and construct floodplain mitigation. The applicant was also required to reconfigure the entrance road and align it with the intersection of Seaboard Road and Nimmo Parkway. Under the current application, the applicant has reconfigured the entrance road and the flood plain management area, as well as reduced the number of lots and the total impacts have been reduced to 4.46 acres of wetlands. The applicant has committed to dedicate 37.9 acres of the project site to the City of Virginia Beach as conservation area. The applicant would also dedicate 35.86 acres of open space to the homeowner’s association (HOA) and 0.61 acres for a park. The area dedicated to the HOA contains approximately 21.55 acres of upland within the Navy’s Air Installation Compatible Use Zone (AICUZ).
COMPENSATORY MITIGATION:
The applicant intends to provide compensatory mitigation for impacts to 4.46 acres of jurisdictional wetlands through the purchase of 8.86 wetland mitigation credits (2:1 for loss of wetlands and 1:1 for conversion) from an approved bank that can serve this project or the purchase of credits from the Virginia Aquatic Resources Trust Fund (VARTF).
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 (20232636).
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).
( ) Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408 (Section 408)).
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 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 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 melissa.a.nash@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 January 15, 2024.
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 Melissa Nash at melissa.a.nash@usace.army.mil or by phone 757-201-7489.
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