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 (DA) 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:
AGENT:
Timmons Group
Attn: Anna Ames
7053 Celebration Park Avenue, Suite 300
Richmond, Virginia 23225
WATERWAY AND LOCATION: The project would affect waters of the United States associated with the Accokeek Creek and the Potomac River Basin. The project is located primarily within the existing Brooke Road corridor and right-of-way; at 38.377664, -77.352687 in Stafford County, Virginia.
PROPOSED WORK and PURPOSE: The applicant requests authorization to permanently impact 1.33 acre of wetlands and 369 linear feet of stream channel. The impacts are associated with realignment of the existing roadway. The work is proposed to address continuous flooding issues that are affecting safe passage to residential communities and travelers using the roadway as a public thoroughfare.
AVOIDANCE AND MINIMIZATION: The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment.
Offsite alternatives were not considered as the work proposed is to address safety hazards in this specific location of the Brooke Road corridor in Stafford County, Virginia.
A No Action Alternative would avoid impacts to jurisdictional aquatic resources and would not require authorization under Sections 401 or 404 of the Clean Water Act (CWA).However, this alternative would not address the identified project purpose of improving roadway resiliency and reducing flooding along Brooke Road. Brooke Road serves as the primary access to several residences and is subject to frequent flooding associated with overtopping Accokeek Creek during storm events. The project has received funding through the Federal Protect grant program, which supports the projects intended purpose to enhance the resiliency of critical transportation infrastructure to natural hazards. Based on site conditions described by the applicant, jurisdictional resources, including palustrine forested (PFO) wetlands, occur adjacent to the southern edge of Brooke Road. According to the applicant, given the proximity of these resources to the existing roadway, roadway modifications necessary to address flooding conditions cannot be properly resolved without some impacts to the PFO system.
Additional considerations have been provided, in the joint permit application, regarding the flow of surface water during storms events which causes flooding of the Accokeek Creek and periodic overtopping of the roadway. The proposed design includes a stormwater detention basin intended to capture runoff from the north side of Brooke Road and temporarily store and gradually release stormwater to the floodplain south of the roadway. The applicant indicates that the basin size and location are based on the stormwater detention volume required to manage storm events and the existing site topography within the project limits.
To reduce potential secondary impacts during construction, the applicant indicates that a project-specific Erosion and Sediment Control (ESC) plan will be developed in accordance with the Virginia Erosion and Sediment Control Law and associated regulations. These measures would be implemented during construction to minimize sedimentation and protect adjacent aquatic resources. The stormwater management system is also intended to maintain hydrologic connectivity between upgradient and downgradient areas while reducing the potential for downstream impacts.
The Corps is in the process of evaluating the avoidance and minimization measures as well as the alternatives analysis located within the joint permit application.
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/search_permits.php
COMPENSATORY MITIGATION: The applicant offered compensatory mitigation, to offset unavoidable functional loss to the aquatic environment, through the purchase of wetland and stream credits through a Corps approved wetland and/or stream mitigation bank.
CULTURAL RESOURCES:
Pursuant to 36 CFR 800.2(a)(2) the Federal Highway Administration (FHWA) is the lead Federal agency responsible for compliance with Section 106 of the National Historic Preservation Act for the proposed action. All required consultations have been completed by the FHWA.
The FHWA, or their designated non-federal representative, coordinated the project with the State Historic Preservation Office (SHPO). In coordination with the SHPO the FHWA determined the project would have no adverse effect on historic resources. The SHPO concurred with the no adverse effect determination via letter dated March 17, 2025 and via follow-up email dated April 3, 2025.
The Corps is the lead Federal agency responsible for compliance with Tribal Trust Responsibilities for the proposed action. All required coordination and/or consultations will be completed separately from the public notice.
ENDANGERED SPECIES:
Pursuant to Section 7 of the Endangered Species Act (ESA) any required consultation with the US Fish and Wildlife Service (USFWS) will be conducted in accordance with 50 CFR part 402. The FHWA is the lead Federal agency for ESA consultation for the proposed action. All required consultations have been completed by the FHWA.
FHWA, or their designated non-federal representative, coordinated the project with the USFWS resulting in a May Affect – Not Likely to Adversely Affect determination for the Northern Long-eared Bat, Tri-colored bat and Small Whorled Pogonia. FHWA has agreed to adherence of a time-of-year restriction from April 1 to November 15, of any given year, for tree removal. For the Small whorled pogonia, construction and development will avoid areas of suitable habitat that were identified in the December 2024 habitat assessment. USFWS concurred with the FHWA determination via email dated April 7, 2025.
ESSENTIAL FISH HABITAT (EFH): 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 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 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 DEQ. In accordance with Certification Rule part 121.12, the Corps will notify the U.S. Environmental Protection Agency (EPA) Administrator when it has received a 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 CWA 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 Corps. Information that is submitted in connection with this Public Notice cannot be maintained as confidential by the Corps. 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 June 15, 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 Anna Lawston at anna.r.lawston@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.