NAO-2024-02657 (City of Virginia Beach The Lakes and Princess Anne Plaza Drainage Improvements project, Virginia Beach, Virginia)

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 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:
Mike Mundy
City of Virginia Beach
2509 Princess Anne Road
Virginia Beach, Virginia 23456

AGENT:
Karen Dodson
Wetland Studies and Solutions, Inc.
1008 Old Virginia Beach Road
Virginia Beach, Virginia 23451

WATERWAY AND LOCATION:  The project would affect waters of the United States and navigable waters of the United States associated with London Bridge Creek, a tidal system flowing primarily to the Lynnhaven River.  The project is located in two distinct areas located along London Bridge Creek. The North London Bridge Creek (NLBC) is located between S. Lynnhaven Road and Sabra Street. The South London Bridge Creek (SLBC) is located along Lynnhaven Parkway, east of Holland Road in Virginia Beach, Virginia. The centroid location of the proposed NLBC site is located approximately at (36.82375, -76.0752). The centroid of the proposed SLBC site is located at approximately (36.80442, -76.08118).

PROPOSED WORK and PURPOSE:  The applicant requests authorization for the construction of the NLBC and SLBC tide gates, the SLBC weir gates, and the wing wall area proposed along the tide gates and weir gates to protect soils, facilities, and to direct water flow, as well as grading and filling for the construction of the pump station, construction of internal maintenance and access roads, stormwater (SWM) and utilities. The proposed activities will result in permanent impacts to wetlands and waters of the U.S. across NLBC and SLBC including 8,015 square feet (0.18 acre) of palustrine forested (PFO) wetland impacts; 68,112 square feet (1.56 acres) of palustrine open water (POW) impacts; 18,807 square feet (0.43 acre) of tidal non-vegetated wetlands (TNVW) impacts; 16,408 square feet (0.38 acre) of estuarine scrub-shrub (ESS) impacts; 5,211 square feet (0.12 acre) of estuarine emergent (EEM) impacts; and 49,545 square feet (1.14 acres) to estuarine open water (EOW) impacts. Additionally, the project will include the dredging of London Bridge Creek and the eastern drainage channel at NLBC as well as dredging of The Lakes Channel and Green Run Canal at SLBC, resulting in permanent, unavoidable impacts to 38,099 square feet (0.87 acre) of open water (EOW). The construction of and activities related to the construction of the NLBC and SLBC tide gates and weir gates as well as the proposed dredging activities will also result in the permanent conversion of wetlands into other habitat types. Cumulatively, there is proposed permanent conversion of 3,260 square feet (0.07 acre) of PFO wetland to PEM, PUB, and Estuarine Unconsolidated Bottom (EUS); 13,337 square feet (0.31 ac) of TNVW to EUS and EOW; 6,344 square feet (0.15 ac) of ESS to EUS and EOW; 4,617 square feet (0.11 ac) of EEM to PUB, EUS, and EOW.

The project will also include the construction access to the retaining wall and associated grading and installation of a temporary trestle at NLBC, resulting in temporary impacts to 968 square feet (0.02 acre) of PFO, 5,355 square feet (0.12 acre) of TNVW, 2,119 square feet (0.05 acre) of ESS, 1,478 square feet (0.03 acre) EEM, and 2,398 square feet (0.06 acre) EOW. All temporary impacts will be returned to preconstruction contours and seeded/planted with appropriate wetland vegetation as applicable.

The proposed project’s purpose is to address flooding in The Lakes and Princess Anne Plaza neighborhoods, which have experienced repeated flooding from both major and minor storm events due to low-lying topography, outdated stormwater infrastructure, tidal influence, and limited runoff storage. In order to maximize flood mitigation in these neighborhoods, one tide gate would not be sufficient as London Bridge Creek receives hydrologic input from both the Lynnhaven River to the north and West Neck Creek/ Canal 2 from the south depending upon tides and wind events. The tide gates at both sites (NLBC and SLBC) work together to form an integrated system to manage stormwater and protect neighborhoods from both tidal and rainfall-induced flooding, regardless of whether the tidal flooding comes from the south or north. The tide gates will remain open to allow the passage of water through the system and the forebay gates will be closed other than for routine maintenance.

AVOIDANCE AND MINIMIZATION: The proposed project has been designed to avoid and minimize impacts to jurisdictional wetlands and other WOTUS to the maximum extent practicable. An early iteration of the NLBC site plan originally included the construction of a temporary diversion channel to construct the tide gate. NLBC would be diverted north to the vicinity of Impact 8 and then rejoin the existing LBC to the south, downstream of the proposed tide gate location. This diversion channel would allow for the tide gate to be constructed all at one time increasing efficiency and lowering project costs. The use of the diversion channel was not selected for a variety of environmental, constructability and engineering challenges. This alternative would require significantly more impacts to wetlands and WOTUS on the northern side of London Bridge Creek in addition to substantial residential property acquisition that is entirely avoided by constructing the tide gate in two cofferdam sections as proposed. The bottom sill of both of the tide gates has been designed to match the existing LBC creek bottom elevation as closely as possible limiting the amount of dredging needed. Similarly, the pump station forebay and discharge channels at NLBC have been designed to tie into the existing LBC elevations limiting dredging and impacts needed to connect the features.

Additionally fringe wetlands along the southern side of NLBC have been mostly avoided and will persist as they maintain their tidal connections. Impacts to these fringe wetlands have been minimized to only those necessary for pump and gate infrastructure. This is also true for SLBC, fringe TNVW will maintain along the edges of LBC in the vicinity of the tide gate. The project has been designed to not cause any downstream flooding or upstream backwatering. Wetlands adjacent to the impacts areas are mostly all tidal and will maintain tidal connectivity, removing the potential for secondary impacts. The project will create approximately 51,237 square feet (1.18 acre) of open water habitat from uplands in the form of the discharge channel at NLBC and Green Run Canal/re-routing of The Lakes Channel at SLBC. Due to the limited size of the sites, water dependent nature, and proximity requirements for the supporting infrastructure, there are no practicable alternatives that can further avoid and minimize impacts to wetlands and other WOTUS.

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=20252226 

COMPENSATORY MITIGATION: The Applicant proposes to compensate for the loss of 0.18 acres of jurisdictional non-tidal wetlands through the purchase of 0.35 non-tidal wetland credits from the Virginia Aquatic Resources Trust Fund. The Applicant proposes to compensate for the loss of 0.63 acres (27,605 square feet) of jurisdictional tidal wetlands through the use of 28,954 square feet of tidal wetland credits from the

Pleasure House Point Tidal Wetland Mitigation Bank (PHP Bank). Table 1 outlines the proposed ratios and impact types and totals for the loss of jurisdictional tidal wetlands and waters.

As noted in Table 1, mitigation for the conversion of ESS to EUS, and EEM to EUS/PUB has been proposed at 1:1 and 0.67:1. These impacts will not result in a complete loss of WOTUS and are being converted to unconsolidated habitats that still function and receive tidal influences and will contain benthic and epifaunal communities. The conversion of ESS, TNVW and EEM to open water are proposed to be compensated at 0.75:1, 0.5:1, and 0.33:1. These impacts do not constitute a complete loss of WOTUS and are conversion to a lower habitat type due to loss of vegetation, but will consist of open water to support aquatic flora and fauna and benthic communities.

CULTURAL RESOURCES: Pursuant to 36 CFR 800.2(a)(2) the U.S. Army Corps of Engineers 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 U.S. Army Corps of Engineers.  

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 will be conducted in accordance with 50 CFR part 402. The U.S. Army Corps of Engineers is the lead Federal agency for ESA consultation for the proposed action. Any required consultation will be completed by the U.S. Army Corps of Engineers.

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: The U.S. Army Corps of Engineers is the lead Federal agency for Essential Fish Habitat consultation for the proposed action. Any required consultation will be completed by the U.S. Army Corps of Engineers.

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.

The Corps intends to initiate Essential Fish Habitat (EFH) consultation separately from this public notice. A separate EFH consultation package will be sent to the National Marine Fisheries Service (NMFS). The Corps will not make a permit decision until the consultation process is complete.

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.

NAVIGATION: The proposed structure or activity is not located in the vicinity of a federal navigation channel. Based on the Virginia State Plane coordinates provided by the applicant, the waterward edge of the proposed NLBC project is approximately 4,000 feet away from the Canal Number 2 federal channel, and the waterward edge of the proposed SLBC project is approximately 2,500 feet away from the Canal Number 2 federal 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 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 May 20, 2026. 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 Taylor Hollingsworth; Katherine.t.hollingsworth@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.