NAO-2023-00997 (Project Broken Branch, Suffolk, Virginia)

Norfolk District
Permit Application No. NAO-2023-00997

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:
Ali Ahmeh
Peak AVA RE, LLC
5875 NW 163^rd Street, Suite 104
Miami Lakes, FL 33014

AGENT:         
Bob Kerr
Wetland Studies and Solutions, Inc.
5300 Wellington Branch Drive
Gainesville, VA 20155

WATERWAY AND LOCATION:  The project would affect waters of the United States associated with Knotts Creek.  The project/review area is located on the south side of Route 17 (Western Branch Blvd), approximately 0.5 miles east of the intersection of Route 17 and US 664 at Latitude 36.863380 and Longitude -76.424346; in the City of Suffolk, Virginia.

PROPOSED WORK and PURPOSE:  The applicant requests authorization to construct two automobile dealerships, totaling 55,000 square feet, including service areas, customer and inventory parking, stormwater management structures and other associated infrastructure. In order to construct this facility, the applicant will permanently fill 1.92 acres of forested wetland.

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 applicant reconfigured the layout of the proposed project to avoid the permanent impact to 0.31 acre of forested wetland.

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=20250025).

COMPENSATORY MITIGATION: The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: Compensatory mitigation for the permanent loss of 1.92 acres of forested wetland will be provided through the purchase of 3.84 acres of wetland credits from an approved wetland mitigation bank that is able to serve the project or through the purchase of in-lieu fee fund credits from the Virginia Aquatic Resources Trust Fund.

CULTURAL RESOURCES:

Pursuant to 36 CFR 800.2(a)(2) the US Army Corps of Engineers (USACE) 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 USACE.

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.

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 USACE is the lead Federal agency for ESA consultation for the proposed action. Any required consultation will be completed by the USACE.

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.

ESSENTIAL FISH HABITAT:
The USACE is the lead Federal agency for Essential Fish Habitat consultation for the proposed action. Any required consultation will be completed by the USACE.

Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act 1996, the Corps reviewed the project area, examined information provided by the applicant, and consulted available species information.

There is no EFH in the Corps area of responsibility.

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 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 30, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to Justin Brown at justin.t.brown@usace.army.mil. Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, Norfolk District, Attention: Justin Brown, CENAO-WRR), 9100 Arboretum Parkway, Suite 235, Richmond, VA 23236, 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.