December 11, 2024
CENAO-WRR
NAO-2024-02581
FEDERAL PUBLIC NOTICE
The District Commander has received a joint permit application for Federal and State permits as described below:
APPLICANT
Mike Mason
Accomack County
23296 Courthouse Avenue, Suite 203
Accomack, Virginia 23301
PROJECT LOCATION: Cedar Island, Accomack County, Virginia 23301
PROJECT SIZE: 98.4
NEAREST WATERWAY: Burtons Bay
LATITUDE AND LONGITUDE: 37.619606, -75.614300
PROJECT DESCRIPTION AND PURPOSE:
The project purpose is to prevent future breaching of Cedar Island at the project site to improve the coastal resiliency of the area. The applicant is seeking authorization to elevate and extend the natural marsh and intertidal flat behind the southern end of Cedar Island, at the site of a former ephemeral tidal inlet known as the ‘The Breach.’ The project plan consists of increasing the elevation of the western half of the site to expand and enhance marsh habitat. Graded areas and areas with no existing marsh will be planted with native marsh plants to increase ground stabilization. In order to stabilize the area of an historic breach, much of the low marsh will be raised and converted to vegetated high marsh through the addition of dredged materials and plantings. The project will result in the construction of approximately 5.90 ac of non-vegetated intertidal, 7.58 ac of vegetated low marsh, 21.26 ac of vegetated high marsh, and 3.93 ac of non-vegetated high marsh. Of the total marsh constructed, 4.69 acres will be new marsh converted from submerged lands. The project will also hydraulically dredge approximately 87.8 acres of subaqueous bottom to obtain 89,500 cy of material that will be used to construct the marsh portion of the project.
AVOIDANCE AND MINIMIZATION:
The applicant evaluated alternatives including variations of widening the marsh along the entire island or variations of widening the marsh just at the inlet tip. The applicant also evaluated a version of the proposed project that would have required 375,00 cy of dredge material. The applicant has also proposed to adhere to a time of year restriction on dredging or sediment placement between April 1st through August 31st of any year to protect listed species.
COMPENSATORY MITIGATION:
The applicant does not propose compensatory 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.
The applicant must obtain a permit from the Accomack County Wetlands Board.
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=20242360).
AUTHORITY:
(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)).
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.
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).
Burtons Bay contains EFH for the neonate, juvenile, and adult life stages of 17 species including albacore tuna, Atlantic butterfish, Atlantic herring, black sea bass, blacktip shark, bluefish, clearnose skate, common thresher shark, dusky shark, red hake, sand tiger shark, scup, smoothhound shark, summer flounder, windowpane flounder, and yellowfin tuna. The habitat which this project would affect consists of shallow water, mud flats, intertidal wetlands, and subaqueous bottom. The proposed project is described in Proposed Work and Purpose, above. 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. The applicant has proposed to incorporate a time of year restriction on construction activities between April 1st and August 31st of any year. Based on comments from the NMFS in response to this public notice, further EFH consultation may be necessary.
ENVIRONMENTAL JUSTICE:
Based in initial records, the proposed project is within an underserved and disadvantaged community.
Additional information may change any of these findings.
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, Virginia 23236, and should be received by the close of business on January 10, 2025.
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 T. Brown by email at justin.t.brown@usace.army.mil, or by phone at (804) 839-0574.