NAO-2022-00145 (Fairwinds Landing, Dredging Heavy Lift Wharfs and Bulkhead, Norfolk, Virginia)

Permit Application No. NAO-2022-00145

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), Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. §403), and Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408 (Section 408)). The purpose of this public notice is to solicit comments from the public regarding the work described below:

APPLICANT:
Fairwinds Landing, LLC
c/o Mike Hopkins
2649 Production Lane
Virginia Beach, Virgina 23454

AGENT:        
Moffatt & Nichol
c/o Sean Jessup
101 West Main Street, Suite 3000
Norfolk, Virginia 23510

WATERWAY AND LOCATION:  The project would affect waters of the United States and navigable waters of the United States associated with the Elizabeth River.  The project is located at 500 Orapax Street; at Latitude 36.86642 and Longitude -76.31492; in Norfolk, Virginia.

PROPOSED WORK and PURPOSE:  The applicant requests authorization to remove existing, abandoned structures and install approximately 1,096-linear-feet of new steel bulkhead and associated return walls no more than 58-feet channelward of mean high water, 1,770 CY of rip rap scour protection channelward of the new bulkhead, and install two (2), 200-foot-wide heavy lift wharfs that will encroach no more than 18-feet-channelward of the proposed bulkheads. The project also proposes to dredge approximately 288,200 CY of material from 1,656,650-square-feet of subaqueous bottom and 700 CY of material from 18,950-square-feet of non-vegetated wetlands to maximum depths ranging from -37 to -42 feet mean low water, including overdredge. All dredged material will be transported by barge and disposed of at either the Craney Island Dredge Material Management Area or Shirley Plantation at Weanack on the James Rivers in Charles City, Virginia.

The purpose of the dredging is to allow for safe navigational depths and mooring of vessels calling upon the facility. The purpose of the replacement bulkheads, new heavy lift wharfs, and their necessary channelward encroachment is to replace existing failing structures and to allow for the safe mooring and loading of vessels by providing suitable mooring alignments and adequate support for heavy cargo and equipment on the wharfs.

AVOIDANCE AND MINIMIZATION: The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment: Multiple potential avoidance and minimization measures are being considered for the Fairwinds Landing project to reduce overall impacts on water quality and the aquatic environment. These measures are considered potential measures that would be finalized during agency coordination. Use of any of these measures (or a combination of measures) may be stipulated as permit conditions by regulatory agencies.

1. Surround the area of all bottom disturbing construction activities with a full-height, weighted turbidity curtain.
2. Use an environmental-type bucket where feasible and where necessary based on sediment chemical data to minimize sediment release from the bucket while ascending through the water column.
3. Implement operational controls during dredging. These may include:
   1. Perform dredging such that the dredge bucket is not overfilled on each deployment, reducing release of sediment.
   2. Control the ascent of the bucket in the water column to minimize incidental release while moving through the water column.
   3. Control the descent of the bucket to minimize hard contact with the bottom and resuspension of sediment upon bucket contact.
   4. Prohibit dragging of the dredge bucket along the sediment surface.
4. Place dredged material in a barge or scow in a manner that maintains sufficient freeboard to eliminate the potential for material leaving/spilling from the barge during transport to the material offloading or placement area.

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=257430.

COMPENSATORY MITIGATION: The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:

To offset permanent impacts to subaqueous bottom and non-vegetated wetlands as a result of the construction of the bulkhead and heavy lift wharfs, the applicant proposes to mitigate at 1:1 ratio with the purchase of 0.72 acres of tidal credits from the Coastal Virginia Conservancy.

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. The District Engineer consulted district files and records and the latest published version of the National Register of Historic Places and initially determines that:

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; however, the undertaking will have no adverse effect on these historic properties. The Corps subsequently requests concurrence from the State Historic Preservation Office and/or Tribal Historic Preservation Office.

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.

This notice serves as request to the U.S. Fish and Wildlife Service and National Marine Fisheries 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:

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.

This notice initiates the Essential Fish Habitat (EFH) consultation requirements of the Magnuson-Stevens Fishery Conservation and Management Act. Our initial determination is that the proposed action may adversely affect EFH and/or fisheries managed by Fishery Management Councils and the National Marine Fisheries Service (NMFS). Implementation of the proposed project would directly impact approximately 1,656,650-square-feet of subaqueous bottom and 18,950-square-feet of non-vegetated wetlands. The effects of the project are determined to be minimal and permanent. These habitat(s) are utilized by the following species and their various life stages:

Our final determination relative to project impacts and the need for mitigation measures is subject to review by and coordination with the National Marine Fisheries Service.

SECTION 408: The USACE Norfolk District Section 408 Coordinator has determined that the proposed activity may require permission to alter a U.S. Army Corps of Engineers (USACE) project pursuant to Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408 (Section 408)). Interested parties are hereby notified this request for permission to alter the Lambert Bend to Paradise Creek portion of the Norfolk Harbor and Channels Federal Navigation Project and Craney Island Dredged Material Management Area (CIDMMA), both which will be evaluated by the Norfolk District. Written comments, including any objections to the proposed alteration, stating reasons therefor, are being solicited from anyone having an interest in the requested alteration. The authority to grant permission for temporary or permanent use, occupation or alteration of any USACE civil works project is contained in Section 14 of the Rivers and Harbors Act of 1899. Section 408 authorizes the Secretary of the Army to grant permission for the alteration or occupation or use of a USACE project if the Secretary determines that the activity will not be injurious to the public interest and will not impair the usefulness of the project. Comments specific this Section 408 review should be submitted directly to the Section 408 Coordinator, Katy Damico at nao.section408@usace.army.mil and the Regulatory contact noted in the Comment Period section below.

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 at eir@deq.virginia.gov 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 November 20, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs. The Corps point of contact for this project is Nicole Woodward at Nicole.l.woodward@usace.army.mil.

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.