NAO 2010-0364/2011-V1116

Published Dec. 31, 2012
Expiration date: 1/31/2013

The District Commander has received a permit modification request for Federal and State permits as described below:


Elizabeth River Crossings, OpCo, LLC
C/o Greg Woodsmall
440 Monticello Avenue, Suite 1800
Norfolk, VA 23510


WATERWAY AND LOCATION OF THE PROPOSED WORK:  The project is located in the Elizabeth River, a tributary to the James River, to the northwest and roughly parallel to the existing Midtown Tunnel crossing in the cities of Norfolk and Portsmouth, Va.


PROPOSED WORK AND PURPOSE:  The applicant proposes to construct a new two-lane tunnel under the Elizabeth River adjacent to the existing Midtown Tunnel. This project is part of the Downtown Tunnel/Midtown Tunnel/Martin Luther King (MLK) Extension Project, but only the Midtown Tunnel construction will involve impacts to jurisdictional areas. The proposed new tunnel will provide for east-west travel, connecting U.S. Route 58 and the Western Freeway in Portsmouth to Brambleton Avenue/Hampton Boulevard in Norfolk. The project purpose is to provide two travel lanes in the westbound direction which will ease congestion and allow for greater flexibility with emergency response and tunnel maintenance operations.


The applicant has requested that the existing permit be modified so that the following changes can be authorized. The first proposal is to eliminate the pile installation under tunnel elements 1, 2, 3 and 11. The proposed dredge depths have been increased in these same areas in order to remove soft clay materials. After these soft clay materials are removed, these areas will be backfilled with granular fill which will be vibro compacted in order to provide a better foundation for these tunnel elements. Under the first three tunnel elements, the revised dredge depths will be a maximum of about 35 feet deeper than the original permitted depths, and under tunnel element 11 the revised dredge depths will be a maximum of 15 feet deeper.  Because this additional dredge material was not included in the material that was originally tested for placement at the Norfolk Ocean Disposal Site (NODS) additional testing may be required.


By incorporating steeper side slopes in the dredge area, and by reducing the dredge footprint in the support of excavation wall on the Portsmouth side of the tunnel, the volume of dredge material has been reduced from 1,500,000 cubic yards of in-situ material to approximately 1,300,000 cubic yards, for a net reduction of 200,000 cubic yards. There will be an approximate reduction of 15,000 cubic yards of contaminated material removed from Dredging Unit (DU) 2T. Originally, an estimated 2,300 creosote pilings were going to be removed from DU 2T and an adjacent upland area, whereas the applicant now expects to remove approximately 1,200 pilings from the footprint of the reduced dredge unit. The authorized amount of backfill in the original permit was 742,130 cubic yards, and the projected amount in the modified permit will now be approximately 508,725 cubic yards.


The location and design of the temporary ancillary structures has changed. The larger trestle structure originally proposed for the Portsmouth side has been reduced from a 19,200 square foot structure to a 12,200 square foot structure. The smaller trestle structure originally proposed for the Portsmouth side has been changed to a spudded barge and has been reduced from a 15,156 sq. ft. structure to a 13,200 sq. ft. structure. This spudded barge requires only two 36-inch spuds be driven into the river bottom versus the fourteen (14) 36-inch piles originally proposed. The temporary marshaling pier on the Norfolk side will still be a floating barge held in place by two 36-inch spuds but the footprint has increased from the original 4,800 sq. ft. to 11,600 sq. ft. The applicant is also proposing 6 additional 36-inch pilings (three vertical and three battered) to be temporarily installed on the Portsmouth side as mooring dolphins. The length of the dredge support of excavation (SOE) on the Norfolk side has been reduced by approximately 85 linear feet. There are two SOE walls on the Portsmouth side. The north dredge SOE wall has been reduced by 172 linear feet and the south dredge SOE wall will increase by 83 linear feet.


The final proposed permit modification is the use of timber pilings to support the turbidity curtains which will be installed around Dredge Units 1, 2, and 5 during dredging and excavation operations. These pilings would help ensure the proper function of the turbidity curtains and will keep the bottom of the curtains at the appropriate depth off of the river bottom.


By incorporating these permit modifications, especially the elimination of the piles under tunnel elements 1, 2, 3, and 11, the amount of time that the applicant is working in the Elizabeth River is expected to be shortened by about five months. Dredge and fill impacts will be minimized by implementing best management practices, including turbidity curtains, the use of environmental dredge buckets where the substrate allows, and tremie pipes to place lighter fill which would otherwise be more likely to suspend in the water column. There will be no additional impacts to tidal or nontidal wetlands or shallow water habitat as a result of the proposed permit modifications.


Dredged material placement options for the Midtown Tunnel project include ocean placement at the Norfolk Ocean Disposal Site (NODS) and upland disposal at a regional landfill.  This public notice also satisfies the requirements of Section 225.2 of the Marine Protection, Research, and Sanctuaries Act (MPRSA). Dredged materials proposed for transport for the purpose of discharge in open waters must be evaluated and permitted by the U.S. Army Corps of Engineers in accordance with part 227 of MPRSA and processed in accordance with 33 CFR 209.120.


Approximately two million cubic yards of dredged material from this project is proposed for transport and placement at the Norfolk Ocean Disposal Site (NODS). The NODS is located in the Atlantic Ocean approximately 17 miles east of Cape Henry. The center point coordinate of the NODS is latitude 36°59’00” North and longitude 75°39’00” West. The site is circular with a radius of 4 nautical miles and has an area of approximately 50 square nautical miles. The NODS has been formerly designated for the placement of suitable dredged materials in 40 Code of Federal Regulations (CFR) Part 228.1 by the EPA Administrator pursuant to section 102(c) of the MPRSA.


The only previous use of the NODS was by the U.S. Navy in August 1993. Approximately 51,000 cubic yards of dredged material from the Naval Supply Center Cheatham Annex and 475,000 cubic yards of dredged material from the Naval Weapons Station Yorktown were placed at the site. There have been no documented effects from the authorized discharges that have been made in the placement area. It is estimated that the placement operations for the Midtown Tunnel project will occur intermittently in phases over an 18-month period.


Sediments proposed for dredging to allow placement of the parallel tunnel section for the Midtown Tunnel project consist of native geologic formation material (i.e. Norfolk Formation and Yorktown Formation) and alluvium material. Grain size of the dredged material is predominantly silty clay material with embedded sands consistent with the native geologic formation. The dredged material proposed for placement at NODS does not meet the testing exclusionary criteria set forth under 40 CFR 227.13(b). Subsequent dredged material testing detected the presence of cyanide, ammonia as nitrogen, several metals, polycyclic aromatic hydrocarbons (PAHs), polychlorinated biphenyls (PCBs), chlorinated pesticides, and dioxins/furans at the site. Dredged material was tested for liquid phase, suspended particulate phase, and solid phases using criteria and procedures developed by the Administrator of the U.S. Environmental Protection Agency (EPA) in accordance with 40 CFR 227.13(c) and 227.32. Evaluation of the liquid phase has determined the material complies with the Limiting Permissible Concentration (LPC) and is in compliance with 40 CFR 227.13(c)(2) and 227.27(a) (1). Evaluation of the liquid and suspended particulate phase has determined the material complies with the LPC and is in compliance with 40 CFR 22.13(c)(3) and 227.27(b). Evaluation of the solid phase has determined the material complies with the LPC and is in compliance with 40 CFR 227.13(c)(3) and 227.27(b). Accordingly, the proposed dredged material from the Midtown Tunnel meets the Ocean Disposal Criteria (40 CFR 227). Because there are additional dredging areas proposed that were not included in the original permit application, additional testing may be required to determine if this material also meets the Ocean Disposal Criteria.


In addition to the required Department of the Army permit modification, the applicant must obtain a Virginia Water Protection Permit/401 certification from the Virginia Department of Environmental Quality assuring that applicable laws and regulations pertaining to water quality are not violated. This project is exempt from local Wetlands Board permits because of the partnership between Elizabeth River Crossings LLC and the Virginia Department of Transportation.  Project drawings are attached.


AUTHORITY:  Permits are required pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), Sections 401 and 404 of the Clean Water Act (Public Law 95-217), part 227 of the Marine Protection, Research, and Sanctuaries Act (MPRSA), and Title 62.1 of the Code of Virginia.


FEDERAL EVALUATION OF APPLICATION:  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.  The decision will reflect the national concern for both protection and utilization of important resources.  The benefits which reasonably may be expected from the proposal must be balanced against its reasonably foreseeable detriments.  All of the proposal's relevant factors will be considered, including conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use classification, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people.  The Environmental Protection Agency's "Guidelines for Specification of Disposal Sites for Dredged or Fill Material" will also be applied (Section 404(b)(1) of the Clean Water Act). 


The Corps of Engineers 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 direct, indirect, and cumulative impacts of this proposed activity.  Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal.  To make this decision, comments are used to assess impacts on 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 and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.  Anyone may request a public hearing to consider this permit application by writing to the District Commander within 30 days of the date of this notice, stating specific reasons for holding the public hearing.  The District Commander will then decide if a hearing should be held.


Preliminary review indicates that:  (l) The Federal Highway Administration (FHWA) is the lead Federal Agency for this project and prepared an Environmental Assessment (EA) and Finding of No Significant Impact; no environmental impact statement will be required; (2) No species of fish, wildlife, or plant (or their critical habitat) listed as endangered or threatened under the Endangered Species Act of 1973 (PL 93-205) will be adversely affected; and (3) Cultural resource investigations have been concluded by FHWA in consultation with the Virginia Department of Historic Resources (VDHR/State Historic Preservation Officer) for each of the component parts of the Downtown Tunnel-Midtown Tunnel-Martin Luther King Expressway Project.  As the Federal lead agency, FHWA prepared a Programmatic Agreement and several Memoranda of Agreement in consultation with VDHR for the project, in compliance with Section 106 of the National Historic Preservation Act of 1966. Additional information might change any of these findings. 


For compliance with the Coastal Zone Management Act of 1972, as amended, the applicant must certify that federally licensed or permitted activities affecting Virginia's coastal zone (Tidewater) will be conducted in a manner consistent with the Virginia Coastal Resources Management Program (VCP). For more information or to obtain a list of the enforceable programs of the VCP, contact the Department of Environmental Quality, Office of Environmental Impact Review at (804) 698-4330 or e-mail:


The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), requires all Federal agencies to consult with the National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH).   FHWA is the lead Federal agency.  The Elizabeth River contains Essential Fish Habitat (EFH) for the various life stages of 11 species including windowpane flounder (Scophthalmus aquosus), bluefish (Pomatomus saltatrix), Atlantic butterfish (Peprilus triacanthus), summer flounder (Paralichthys dentatus), black sea bass (Centropristis striata), king mackerel (Scomberomorus cavalla), Spanish mackerel (Scomberomorus maculatus), cobia (Rachycentron canadum), red drum (Sciaenops occelatus), dusky shark (Carcharhinus obscurus), and habitat areas of particular concern (HAPC) for sandbar shark (Carcharhinus plumbeus). The habitat which this project would affect consists of shallow water, vegetated wetlands, rip rap, and river bottom deeper than 15 feet. The proposed project is described in the Proposed Work and Purpose section, above.  Dredging of shallow and deep water areas may impact existing benthic species, temporarily increase turbidity, and affect feeding areas for juvenile fish and invertebrates.  Our assessment of the project leads us to a preliminary determination that it will not have a substantial adverse effect on EFH and therefore expanded EFH consultation is not required.  Our rationale for this preliminary determination is based on the expected short-term nature of the direct impacts, the implementation of dredging best management practices, the removal of contaminated sediments in certain areas of river bottom, and ecotoxicological testing of the dredged material using appropriate sensitive benchmark organisms indicating compliance with the limiting permissible concentration (LPC) for the liquid phase, liquid and suspended particulate phase, and solid phase dredged material. The project will also create rocky substrate over immersed tunnel sections. The applicant will also use a turbidity curtain when dredging certain areas of the river. Based on comments from the National Marine Fisheries Service in response to this public notice, further EFH consultation may be necessary.


COMMENT PERIOD:  Comments on this project should be made in writing, addressed to the Norfolk District, Corps of Engineers c/o George Janek (ATTN:  CENAO-WR-R), 803 Front Street, Norfolk, Virginia  23510-1096, and should be received by the close of business on Jan. 31, 2013.


PRIVACY & 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.


If you have any questions about this project or the permit process, contact George Janek at 757-201-7135 or






                                                                        Kimberly A. Prisco-Baggett

                                                                        Chief, Eastern Virginia

                                                                        Regulatory Section