NAO-2018-01405 (Nestle Purina King William Clay Mine Expansion Project / PJD / King William, Virginia)

Norfolk District
Permit Application No. NAO-2018-0140

TO WHOM IT MAY CONCERN: The Norfolk District of the U.S. Army Corps of Engineers (Corps) has received an application for a Department of the Army permit pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344) and/or Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. §403). The purpose of this public notice is to solicit comments from the public regarding the work described below:

APPLICANT:  
Tony Parrish
Nestle Purina Petcare Company
131 Tidy Cat Road
King William, VA 23086

AGENT:
Marybeth Winters
Marshall Miller & Associates, Inc. 200 George Street, Suite 5
Beckley, WV 25801

WATERWAY AND LOCATION: The project would affect waters of the United States associated with Jackpen Creek. The project/review area is located at 131 Tidy Cat Road; at Latitude 37.713985 and Longitude -77.127985; in King William, King William County, VA.

EXISTING CONDITIONS: The northern portion of the proposed mining area is highly disturbed as it lies adjacent to the current active mining area and contains dirt roads, conveyor system, and other infrastructure and laydown areas. The southern portion of the proposed mining expansion contains semi-mature and immature forested areas with two drainage features. Portion of the forested areas are bisected by cleared and maintained easements.

PROJECT PURPOSE:

Basic: To expose and mine additional clay reserves.

Overall: To expose and mine additional clay reserves in an efficient and predictable manner to meet anticipated demand.

PROPOSED WORK: Nestle Purina Petcare Company is requesting a permit modification for the expansion of an existing clay mining operation. The original authorization was issued on March 12, 2020, and expires on March 12, 2030. The work will involve removal of overburden and mining of Calvert formation clay from an additional 76.4 acres of extractable area. The previous authorization resulted in the permanent impacts of 0.53 acres of nontidal forested wetlands and 492 linear feet of stream channel; the modification will result in the additional permanent impacts to 1.02 acres of nontidal forested wetlands and 2,464 linear feet of stream channel.

A copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website (24-1462).

AVOIDANCE AND MINIMIZATION: Impacts to jurisdictional features were avoided and minimized to the maximum extent practicable by incorporating resourceful site selection, site planning, including the utilization of a preliminary jurisdictional determination to ensure all jurisdictional features within the Project Area were accurately mapped. After the wetlands were delineated, a mining plan was developed to determine additional clay reserves to support operations, while minimizing impacts to Waters of the U.S. The proposed expansion results in the least impacts to Waters of the

U.S. with consideration for the cost and logistical requirements to continue meeting consumer demands.

COMPENSATORY MITIGATION:
The applicant proposes to compensate for the permanent impacts to wetlands and streams through the purchase of 0.16 wetland credits and 543 stream credits from the York River Mitigation Bank.

CULTURAL RESOURCES:

The Corps evaluated the undertaking pursuant to Section 106 of the National Historic Preservation Act (NHPA) utilizing its existing program-specific regulations and procedures along with 36 CFR Part 800. The Corps’ program-specific procedures include 33 CFR 325, Appendix C, and revised interim guidance issued in 2005 and 2007, respectively. The District Engineer consulted district files and records and the latest published version of the National Register of Historic Places and initially determines that:

No historic properties (i.e., properties listed in or eligible for inclusion in the National Register of Historic Places) are present within the Corps’ permit area; therefore, there will be no historic properties affected. The Corps subsequently requests concurrence from the SHPO and/or THPO.

No resources listed in or eligible for inclusion in the National Register of Historic Places are known to be present in the vicinity of the proposed work; however, the permit area has not been formally surveyed for the presence of cultural resources. Additional work may be necessary to identify and assess any cultural resources that may be present. This notice serves as a request to SHPO, THPO, and/or other interested parties to provide any information they may have regarding historic properties.

The District Engineer’s final eligibility and effect determination will be based upon coordination with the SHPO and/or THPO, as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps-identified permit area.

ENDANGERED SPECIES:
The Corps has performed an initial review of the application, the U.S. Fish and Wildlife Service (USFWS) Information for Planning and Consultation (IPaC), National Marine Fisheries Service (NMFS) Section 7 Mapper, and the NMFS Critical Habitat Mapper to determine if any threatened, endangered, proposed, or candidate species, as well as the proposed and final designated critical habitat may occur in the vicinity of the proposed project. Based on this initial review, the Corps has made a preliminary determination that the proposed project may affect species and critical habitat listed below. No other ESA-listed species or critical habitat will be affected by the proposed action.

Table 1: ESA-listed species and/or critical habitat potentially present in the action area.

Pursuant to Section 7 ESA, any required consultation with the Service(s) will be conducted in accordance with 50 CFR part 402. The Corps is the lead Federal agency for ESA consultation for the proposed action. Any required consultation will be completed by the Corps.

This notice serves as request to the U.S. Fish and Wildlife Service for any additional information on whether any listed or proposed to be listed endangered or threatened species or critical habitat may be present in the area which would be affected by the proposed activity.

NAVIGATION: The proposed structure or activity is not located in the vicinity of a federal navigation channel.

SECTION 408: The applicant will not require permission under Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408) because the activity, in whole or in part, would not alter, occupy, or use a Corps Civil Works project.

NOTE: This public notice is being issued based on information furnished by the applicant. This information has not been verified or evaluated to ensure compliance with laws and regulation governing the regulatory program. The geographic extent of aquatic resources within the proposed project area that either are, or are presumed to be, within the Corps jurisdiction has not been verified by Corps personnel.

EVALUATION: 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. That decision will reflect the national concern for both protection and utilization of important resources. The benefits, which reasonably may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including cumulative impacts thereof; among these are conservation, economics, esthetics, general environmental concerns, wetlands, historical properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food, and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people. Evaluation of the impact of the activity on the public interest will also include application of the guidelines promulgated by the Administrator, EPA, under authority of Section 404(b) of the Clean Water Act or the criteria established under authority of Section 102(a) of the Marine Protection Research and Sanctuaries Act of 1972. A permit will be granted unless its issuance is found to be contrary to the public interest.

COMMENTS: The Corps 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 impacts of this proposed activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this determination, comments are used to assess impacts to 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 (EA) and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act (NEPA). Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

The Norfolk District will receive written comments on the proposed work, as outlined above, until April 12, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to Jaime Longo at Jaime.Parello@usace.army.mil Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, Norfolk District, Attention: Jaime Longo, 803 Front Street, Norfolk, VA 23510. Please refer to the permit application number in your comments.

Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. Requests for a public hearing will be granted, unless the District Engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.