May 15, 2024
CENAO-WRR
NAO-2009-00044
FEDERAL PUBLIC NOTICE
The District Commander has received 2 project proposals to establish the Paradise Creek Phase 2 and 3 sites to provide compensatory mitigation for federal and state permits as described below:
IN LIEU FEE SPONSOR
Ms. Mary Ann Saunders
Coastal Virginia Conservancy (Sponsor)
Living River Restoration Trust (ILF)
5215 Colley Avenue
Norfolk, VA 23508
PROJECT LOCATION:
The 2 proposed compensatory mitigation sites (Projects) are located on sub-tidal property owned by the Commonwealth of Virginia and located in Paradise Creek in the City of Portsmouth, Virginia.
PROJECT SIZE: Approximately 12 acres
NEAREST WATERWAY: Elizabeth River
LATITUDE AND LONGITUDE: 36.8048 -76.3096 and 36.7988 -76.2998
PROPOSED DESCRIPTION AND PURPOSE:
The Sponsor proposes to place a thin layer of granular activated carbon on the existing surficial sediment in 6 areas of Paradise Creek, using a mechanical delivery system. In addition, the Sponsor proposes to develop the final sediment remediation techniques to be applied to 8 areas of Paradise Creek as the projects move forward. The proposed activities are anticipated to generate approximately 12 compensatory mitigation credits.
The purpose of the Projects is to remove contaminated sediments and/or bind available organic contaminants in the sediment to the activated carbon, preventing them from becoming bioavailable and to provide off-site compensatory mitigation for projects that result in unavoidable impacts in the Elizabeth River Drainage Basin.
The Sponsor proposed, for purposes of Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act, that the geographic service area of the Projects would include the National Watershed Boundary Dataset Hydrologic Unit Codes 02080208.
Oversight of the Projects would be by an existing group of federal and state agency representatives. This interagency oversight group is known as the Interagency Review Team (IRT). The Norfolk District of the U.S. Army Corps of Engineers (USACE) and the Virginia Department of Environmental Quality (DEQ) chair the IRT.
The ILF/Projects may be one of a number of practicable options available to applicants to compensate for unavoidable impacts associated with permits issued under the authority of Section 10 of the Rivers and Harbors Act and Section 404 and 401 of the Clean Water Act (Public Law 95-217) in Virginia.
The actual approval of the use of credits from the ILF/Projects, for impacts authorized by a proposed permit, is the decision of the USACE pursuant to Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act and/or by the DEQ pursuant to Section 401 of the Clean Water Act and Title 62.1 of the Code of Virginia. The USACE and the DEQ provide no guarantee that any particular individual or general permit will be granted authorization to use the ILF/Projects to compensate for unavoidable impacts associated with a proposed permit. Authorization by the Virginia Marine Resources Commission may also be required for its use for specific projects.
The Proposal and Drawings can be viewed at https://ribits.ops.usace.army.mil/ords/f?p=107:622
AUTHORITY:
Issuance of a public notice regarding proposed compensatory mitigation sites is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 325 and 332).
FEDERAL EVALUATION OF PROPOSAL:
This is not an application for work in Waters of the United States. The decision whether to approve these Projects 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 USACE 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 the Projects. Any comments received will be considered by the USACE to determine whether to approve these Projects. 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 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 USACE has made the preliminary determination that:
No listed/proposed/candidate species and/or designated/proposed critical habitat under the ESA of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended, will be affected. Based on this “no effect” determination, no further coordination with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) is required.
Additional information might change any of these findings.
HISTORIC AND CULTURAL RESOURCES:
Historic Resources eligible for inclusion or included in the National Register of Historic Places (NRHP) are in or near the USACE permit area and would likely not be affected by the Projects.
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).
Paradise Creek and the Elizabeth River contain EFH for numerous species. The habitat which this project would affect consists of sub-tidal bottom. The proposed project is described in Proposed Description and Purpose, above and in the Project Proposal which can be viewed at the link identified above.
Our assessment of the Projects 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/changes in water temperature or salinity caused by the proposed work/the absence of vegetated wetlands, submerged aquatic vegetation, and anadromous fish spawning habitat/ existing poor water quality/unsuitable substrate.
Based on comments from the NMFS in response to this public notice, further EFH consultation may be necessary.
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 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 USACE 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.
Coastal Zone Management Act concurrence is not required, this is not an application for work in Waters of the United States.
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 DEQ. In accordance with Certification Rule part 121.12, the USACE 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.
Virginia Section 401 Water Quality Certification is not required, this is not an application for work in Waters of the United States.
COMMENT PERIOD:
Comments on these Projects should be in writing and can be sent by either email to CENAO_REG_MitigationTeam@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, ATTN: Jeanne Richardson and should be received by the close of business on June 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 these Projects or the compensatory mitigation process, contact:
Jeanne C. Richardson, by email at jeanne.c.richardson@usace.army.mil, or by telephone at 434.459.8160.