NAO-2023-02631 (Yadkins Energy Center, Chesapeake, Virginia)

Permit Application No. NAO-2023-02631

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 notice is to advise the public that the following request, associated with the Yadkins Energy Center, has been submitted for a Department of the Army (DA) permit under the provisions of Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and/or Section 103 of the Marine Research, Protection, and Sanctuaries Act of 1972, as amended. In Executive Order (EO) 14156 the President declared a national emergency under the National Emergencies Act (50 U.S.C. 1621) based upon the finding that the United States’ insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our Nation’s economy, national security, and foreign policy. The U.S. Army Corps of Engineers (Corps), Norfolk District has found that this permit request meets the terms of EO 14156 and is therefore subject to special emergency permitting procedures to address an energy supply situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. The Norfolk District will implement the special processing procedures approved by North Atlantic Division in accordance with 33 CFR § 325.2(e)(4).

APPLICANT:
Matt Boys
Yadkins Energy Center, LLC.
11801 Domain Boulevard, Suite 450
Austin, TX 78758

AGENT:        
David Kwasniewski
Koontz Bryant Johnson Williams, Inc.
7511 Whitepine Road
Chesterfield, VA 23237

WATERWAY AND LOCATION:  The project would affect waters of the United States associated with Deep Creek.  The project/review area is located south of Yadkin Road and the Norfolk Southern Railroad line, bound to the east by US Route 17 (George Washington Highway N) and to the west by the Dominion Energy Yadkin Substation, and north of an existing powerline easement to the South; at Latitude 36.764843 and Longitude -76.348594; in Chesapeake, Virginia.

PROPOSED WORK and PURPOSE:  The applicant requests authorization to construct a battery energy storage system (BESS) adjacent to the existing electric utility infrastructure consisting of a 25-acre substation and several high-voltage transmission lines. The proposed activities will result in permanent impacts to 1.89 acres of forested wetlands, 1.53 acres of emergent wetlands, and will permanently convert 0.71 acre of forested wetlands to emergent wetlands. The purpose of the project is to construct a 100 megawatt / 400 megawatt-hour BESS facility that can safely store electricity from an existing power substation.

AVOIDANCE AND MINIMIZATION: The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment: Due to the extent of jurisdictional features located onsite and the configuration of the proposed BESS facility, complete avoidance of these features is impracticable. However, the applicant intentionally positioned the location of the BESS facility in the eastern portion of the project area to avoid the majority of the aquatic resources on the site. The applicant will be utilizing an existing access road for one of the site entrances, as well as connecting the Gen-tie transmission line into an existing, nearby substation and placed on poles to limit the extent of impact area. The utility easement will utilize cleared areas and uplands adjacent to Yadkin Road where possible. Stormwater infrastructure proposed onsite has been designed per the Virginia Stormwater Management Handbook.

A copy of the joint permit application can be found on the Virginia Marine Resources Commission’s website at: (https://webapps.mrc.virginia.gov/public/habitat/getADD.php?id=242300)

COMPENSATORY MITIGATION: The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: To offset permanent impacts, the applicant proposes to purchase 6.02 credits from an agency approved mitigation bank that services HUC 02080208. The applicant proposes to mitigate at a 2:1 ratio for 1.89 acres of palustrine forested (PFO) wetland impacts, a 1:1 ratio for 1.53 acres of palustrine emergent (PEM) wetland impacts, and a 1:1 ratio for permanent conversion of 0.71 acres of PFO wetlands to PEM wetlands.

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), National Marine Fisheries Service (NMFS) Section 7 Mapper, and the NMFS Critical Habitat Mapper 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 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.

ESSENTIAL FISH HABITAT:

The Corps is the lead Federal agency for Essential Fish Habitat consultation for the proposed action. Any required consultation will be completed by the Corps.

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 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 August 8, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to Taylor Hollingsworth at Katherine.t.hollingsworth@usace.army.mil. Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, Norfolk District, Attention: Taylor Hollingsworth, 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.