NAO-2023-00311 (I-64 Gap A, New Kent County, Virginia)

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

APPLICANT
Shirley Contracting Company LLC

PROJECT LOCATION:  The proposed project is located between mile marker (MM) 204.9 and MM 215.6 in New Kent County, Virginia.

PROJECT SIZE: The project corridor is an 11-mile segment of Interstate 64.

NEAREST WATERWAY: Chickahominy River and tributary streams.

LATITUDE AND LONGITUDE:   
Western Terminus: 37.517713, -77.202017
Eastern Terminus: 37.492931, -77.005203

PROJECT DESCRIPTION AND PURPOSE:
The applicant proposes to construct additional travel lanes along I-64. The proposed project is the first of three “Gap” segments that will adjoin segments of I64 that have a minimum of six travel lanes. The proposed addition of a third lane in each direction will increase connectivity between Richmond and Hampton Roads. The project is anticipated to result in temporary impacts to 0.906 acres of wetlands and 43,234 square feet (4,260 linear feet) of streams as well as permanent impacts to 0.922 acres of wetlands and 23,454 square feet of streams (1,323 linear feet). The project will also result in the conversion of 0.49 acres of palustrine forested (PFO) wetlands and 0.026 palustrine scrub-shrub (PSS) wetlands to palustrine emergent (PEM) wetlands.

AVOIDANCE AND MINIMIZATION: 
The majority of the impacts associated with this project result from extension of roadway fill slope to construct the proposed improvements. Jurisdictional waters and wetlands were identified during project planning and design and impacts have been avoided wherever possible. The project has been designed to avoid the need for stormwater management facilities which minimizes the project footprint and overall impact. Additionally, multiple areas throughout the project, and especially around PFO wetlands, have been set aside as ‘tree-save’ areas.

COMPENSATORY MITIGATION:
Mitigation for unavoidable impacts is proposed at the prescribed ratios of 2:1 for PFO impacts, 1.5:1 for PSS impacts, 1:1 for PEM impacts, 1:1 for PFO to PEM conversion, and 0.5:1 for PSS to PEM conversion. Mitigation for unavoidable stream impacts was determined using Unified Stream Methodology (USM). Current estimates are that the project will require 2.26 acres of wetland credits and 1,684 linear feet of stream credits. This project proposes to obtain all mitigation credits from private mitigation banks or through payment into the in-lieu fee program. This project does not propose any permittee responsible mitigation.

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 at: webapps.mrc.virginia.gov/public/habitat/additionaldocs.php?id=20240165

AUTHORITY:
Permits are required pursuant to 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).

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 pursuant to the National Environmental Policy Act.

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.

Preliminary review indicates that: The Federal Highway Administration (FHWA) is the lead Federal agency.

1. In November 2022, the FHWA approved a Categorical Exclusion (CE) level National Environmental Policy Act (NEPA) document for I-64 Improvements from Exit 205 to Exit 234, which covers this phase (“Gap A”) of the proposed improvements.
2. The applicant searched the U.S. Fish and Wildlife Service (USFWS) IPaC system and found potential for the Northern Long-eared Bat (NLEB) and Tricolored Bat (TCB). The applicant conducted an Acoustic Bat Survey in the Fall of 2023 which indicates the probable absence of the NLEB and confirmed the presence of the TCB. The applicant initiated project review with USFWS in January 2024 which included ‘Not Likely to Adversely Affect’ determinations for the NLEB and TCB along with a commitment to complete all tree removal during the inactive season which is November 15 through March 31 of any year.
3. The applicant has completed coordination with the Virginia Department of Historic Resources (DHR). On March 23, 2023, DHR staff provided correspondence concluding that “the project will have No Adverse Effect on historic properties.”
4. There is no Essential Fish Habitat (EFH) in the Corps area of responsibility for this project.
5. The applicant provided a Costal Zone Management Act (CZMA) Consistency Certification package to the Virginia Department of Environmental Quality (DEQ) in January 2024. It is the applicant’s responsibility complete coordination with DEQ, and proof of concurrence must be provided to the Corps prior to permit issuance. For more information or to obtain a list of the enforceable policies of the Virginia CZM Program, contact the DEQ Office of Environmental Impact Review at (804) 659-1915.

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 justin.summers@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 May 9^th, 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

Mr. Justin Summers, justin.summers@usace.army.mil, (540) 986-6793.