NAO-2024-00919 (Lake Overton BMP Retrofit, Henrico, Virginia)

U.S. Army Corps of Engineers Norfolk District
Published May 21, 2024
Expiration date: 6/20/2024

May 21, 2024
CENAO-WRR
NAO-2024-00919

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

APPLICANT
Mr. Michael Aust
Henrico County – Department of Public Works
4305 E. Parham Road
Henrico, VA 23228

PROJECT LOCATION:  Lake Overton, 7610 Eisenhower Drive, Henrico, VA 23227

PROJECT SIZE: 3.76 acres

NEAREST WATERWAY: Upham Brook

LATITUDE AND LONGITUDE: 37.622836, -77.430931

PROJECT DESCRIPTION AND PURPOSE: 
The proposed project at Lake Overton includes the removal of accumulated sediment, the renovation and upgrade to a stormwater management facility that includes aquatic benches, a cold water intake, and work to accommodate future sediment removal needs. The applicant’s stated purpose is to renovate and upgrade the lake to a Wet Pond, Level Two stormwater management facility. The proposed project will permanently impact 0.08 acre of non-tidal forested wetland, 0.17 acre of non-tidal scrub-shrub wetland, 0.69 acres of non-tidal emergent wetland, 0.37 acre of non-tidal open water, and 537 linear feet of stream. The project will permanently convert 0.17 acre of non-tidal forested wetland to non-tidal emergent wetland and 0.12 acre of non-tidal scrub-shrub wetland to non-tidal emergent wetland. The project will also temporarily impact 0.13 acre of non-tidal emergent wetland and 1.35 acres of non-tidal open water.

AVOIDANCE AND MINIMIZATION: 
The applicant has limited the project footprint to what is needed to achieve the project purpose. The project avoids and minimizes impacts to aquatic resources by limiting access locations for the project construction. Additionally fringing wetlands at the northern end of the project were avoided and not disturbed due to staging dredging activities from the lake area that is to be dredged and not from the shoreline. Dredging related impacts are minimized so that only the originally designed shoreline limits are constructed.

COMPENSATORY MITIGATION:
The applicant proposes to compensate for unavoidable permanent impacts to 0.08 acre of non-tidal forested wetland, 0.17 acre of non-tidal scrub-shrub wetland, 0.69 acres of non-tidal emergent wetland, and 537 linear feet of stream and the permanent conversion of 0.17 acre of non-tidal forested wetland to non-tidal emergent wetland and 0.12 acre of non-tidal scrub-shrub wetland to non-tidal emergent wetland by purchasing 1.40 advance non-tidal wetland credits (2:1 ratio, 1.5:1 ratio, and 1:1 ratio, respectively, for permanent impacts, and 1:1 ratio for permanent conversion impacts) and 551 stream credits (USM derived ratio) from the Virginia Aquatic Resources Trust Fund and an approved stream mitigation 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 (https://webapps.mrc.virginia.gov/public/habitat/additionaldocs.php?id=20231212).

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:

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:
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 justin.t.brown@usace.army.mil, or by regular mail, addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WRR), 9100 Arboretum Parkway, Suite 235, Richmond, VA 23236, and should be received by the close of business on June 20, 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 Brown, justin.t.brown@usace.army.mil and (804) 839-0574.

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