Norfolk District
Permit Application No. NAO-2020-00731
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). The purpose of this public notice is to solicit comments from the public regarding the work described below:
APPLICANT:
Ms. Virginia Cross
Dominion West, Inc.
321 Great Bridge Boulevard
Chesapeake, VA 23320
AGENT:
Mr. Andrew Pocta
MAP Environmental Inc.
116 Landmark Square, Suite 101
Virginia Beach, VA 23452
WATERWAY AND LOCATION: The project would affect waters of the United States associated with Lindsey Canal, a tributary to the Southern Branch of the Elizabeth River. The project/review area is located on the on the north side of Dominion Boulevard South, south of Green Sea Trail, and west of Cedar Road; at Latitude 36.713680° and Longitude -76.327979°; in Chesapeake, Virginia.
PROPOSED WORK and PURPOSE: The applicant requests authorization to provide age-restricted (55+) residential housing (condominiums and townhomes) in the Grassfield area of Chesapeake, Virginia. The project, known as the Dominion West Residential Subdivision, would result in the permanent loss of 2.5 acres of non-tidal wetlands (comprised of 1.29 acres of forested wetlands (PFO), 1.258 acres of scrub-shrub wetlands (PSS), 0.065 acres of emergent wetlands (PEM)), 0.49 acres of non-tidal open waters (POW), 2,602 linear feet (17,466 square feet) of ditches, and 67 linear feet (1,197 square feet) of non-tidal stream channel.
The applicant has requested an Approved Jurisdictional Determination (AJD) for approximately 0.97 acres of PFO (proposed wetland impacts 8-13, 15) because they consider them to be non-adjacent wetlands per the pre-2015 regime, post-Sackett.
AVOIDANCE AND MINIMIZATION: The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment:
“The four (4) parcels situated within Dominion West were rezoned in 2019 from A-1 Agricultural District, B-2 General Business District, R-15 Residential District, and R025 Residential District to R-MF-1 Multifamily Residential District and R-TH-1 Residential District for an age restricted housing development and group housing for the elderly. This rezoning has allowed the project engineer to maximize lot yield within the smallest feasible area while considering the existing natural environment. Of the 102.65 total acres within the project site, the project area is limited to 55.35 acres.
The original project concept included a maximum combination of 400 single-family condominium units and attached townhouse-style lots as well as a group housing for the elderly facility with capacity not exceeding 150 units. This design would have impacted approximately 5 acres of nontidal wetlands, 660 linear feet of non-tidal streams, and 3,000 linear feet of ditches. As the project continued to develop, the project engineer reduced the number of residential units to 345 and developed a stormwater design that utilized existing topography to direct surface water flow to avoided, enhanced, and created wetland features, which led to an over reduction of approximately 1.40-acres of non-tidal wetlands 593 linear feet of non-tidal streams and 398-linear feet of ditches. As a result, the stormwater design, as well as all additional proposed utilities, operates independently and does not rely on existing or future development.”
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/getPDF.php?id=20242455).
COMPENSATORY MITIGATION: The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: purchase wetland and stream credits from an approved mitigation bank that covers the service area where the project is located. The wetland credits purchased would be at standard ratios (2:1 for PFO, 1.5:1 for PSS, and 1:1 for PEM), and required stream credits will be determined using the Unified Stream Methodology.
CULTURAL RESOURCES: Pursuant to 36 CFR 800.2(a)(2) the Corps is the lead Federal agency responsible for compliance with Section 106 of the National Historic Preservation Act for the proposed action. Any required consultation will be completed by the Corps.
The Corps is evaluating the undertaking for effects to historic properties as required under Section 106 of the National Historic Preservation Act. This public notice serves to inform the public of the proposed undertaking and invites comments including those from local, State, and Federal government Agencies with respect to historic resources. Our final determination relative to historic resource impacts may be subject to additional coordination with the State Historic Preservation Officer (SHPO), federally recognized tribes, and other interested parties.
The District Engineer’s final eligibility and effect determination will be based upon coordination with the SHPO and/or Tribal Historic Preservation Office, 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) to determine if any threatened, endangered, proposed, or candidate species, and 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 there may be an effect to listed/proposed/candidate species and/or designated/proposed critical habitat.
ESA-listed species and/or critical habitat potentially present in the action area.
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Species Common Name and/or Critical Habitat Name
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Scientific Name
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Federal Status
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Tricolored Bat
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Perimyotis subflavus
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Proposed Endangered
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Monarch Butterfly
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Danaus plexippus
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Proposed Threatened
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Pursuant to Section 7 of the Endangered Species Act (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.
The USFWS Information and Planning and Consultation (IPaC) Official Species List and Species Conclusion Table are attached for review and comment by the USFWS and the NMFS.
NAVIGATION: The proposed structure or activity is not located in the vicinity of a federal navigation channel.
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 not submitted concurrence.
WATER QUALITY CERTIFICATION: Water Quality Certification may be required from the Virginia Department of Environmental Quality. 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.
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 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.
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.
The Norfolk District will receive written comments on the proposed work, as outlined above, until April 25, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to David Knepper at david.a.knepper@usace.army.mil. Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, Norfolk District, Attention: David Knepper, CENAO-WRR), 803 Front Street, Norfolk, VA 23510-1011, 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.