NAO-2007-4170 (VMRC 13-0678)

Published May 28, 2013
Expiration date: 6/24/2013

The District Commander has received a joint application for Federal and State permits as described below:

Oyster Point Village, LLC
P.O. Box 214
Fairburn, GA 30213

The project is located in non-tidal wetlands that drain by ditch and tributary to Deep Creek and the James River; and also to Brick Kiln Creek, Big Bethel Reservoir, and the Back River. The project site is at the southeastern intersection of Jefferson Boulevard and Oyster Point Road, in Newport News, Va. The applicant proposes preservation compensatory mitigation on Newport News Waterworks property where they propose to introduce fire management by controlled burns in an 80-acre area that is reported to include 30-acres of palustrine forested wetlands, to establish a longleaf pine and seasonal pond natural area by fire management.

The project is part of a mixed use commercial/campus development that is a part of a larger mixed-use facility associated with the expansion of the Jefferson Labs complex.

The applicant considered several off-site and on-site alternatives. Off-site alternative 1 is located on the east side of Jefferson Avenue near the intersection with Habersham Drive. Preliminary site plans would call for the development of 103,000 square feet of retail space. The applicant dismissed site because of impacts to wetlands and streams, onsite conditions and VDOT restrictions on property ingress/egress points that would severely restrict the flow of traffic onsite, concerns resulting from the proximity to the airport, and the applicant’s determinations that the cost of the land at this location and the limited size of the developable land are not adequate for an acceptable return on the investment.

Off-site alternative 2 is located at the intersection of Brick Kiln Road and Jefferson Avenue. The applicant reports that, due to property size constraints, the development of this site would result in a small retail footprint, with approximately 105,000 square feet of retail space being developed. Several issues made this site undesirable for the proposed project. First, a large drainage ditch and a wetland are located onsite. Due to the limited size of the property, avoiding impacts to this wetland would be impossible. Second, due to restrictions on the placement of access lanes, VDOT would not allow access from Jefferson Avenue. This would leave Brick Kiln Road as the only access point to the property. Brick Kiln Road is not of adequate size to support the traffic flows for the facility. Third, there has been significant opposition from the local community, specifically the Kiln Creek community, regarding the location of the proposed project at this site. Opposition primarily has been related to concerns over traffic congestion as a result of the project. Another concern for this site is its proximity to the Newport News-Williamsburg International Airport. Finally, the applicant determined that the cost of the land at this location and the limited size of the developable land are not adequate for an acceptable return on the investment.

Off-site alternative 3 is located at the intersection of Commonwealth Drive and Victory Boulevard, approximately 3 miles east of the preferred site location. The site is a Kmart store that is downsizing and a portion of the store is available for commercial development. However, the site recently is under contract to another national grocery retailer and is no longer available. The applicant determined that this facility is also a location best suited for a local or community retail facility rather than a regional facility as proposed by Whole Foods Market. The design of this facility and its proximity to local communities is mainly to serve the Kiln Creek Community rather than the entire region. Also, the access to the public transportation is limited at this site.

For on-site alternatives, the applicant investigated several plans in the process of planning the preferred alternative, with each plan taking into account factors such as: environmental impacts, zoning, traffic, light rail, stormwater, development space, and construction requirements.

Alternative Site Plan 1 was for 345,665 square feet of development. This alternative site plan was the initial plan that was developed once the property had been identified as a potential development site. This plan proposed to impact approximately 13 acres of wetlands onsite. This plan was abandoned because of the excessive wetland impacts required for the site development.

Alternative Site Plan 2 was for 345,665 square feet of development. This alternative site plan was another preliminary attempt to plan the development and work around the wetlands onsite. The planner estimated the location of the wetlands and proposed to impact approximately 7 acres of wetland onsite. This plan was abandoned because of the excessive wetland impact required for the site development.

Alternative Site Plan 3 was for 237,167 square feet of development. This alternative plan was developed with 5.78 acres of wetland impacts. Building square footage was reduced and the site layout was rearranged to minimize impacts to the wetlands. This plan was abandoned because of the excessive wetland impact required for the site development.

The applicant’s preferred alternative is for 290,000 square feet of development. The preferred alternative is proposing 2.9 acres of wetland impacts. In order to achieve this reduced impact, the developer has chosen to do underground detention and treatment of stormwater. Instead of using 3 acres of open water detention, the developer has chosen to increase the building square footage and put these systems underground. In doing this the developer has also compressed the development plan by making some buildings two stories, reducing parking, and minimizing landscaping.

Offsite Conceptual Mitigation Plan
In the process of looking for mitigation to offset the 2.9 acres of coastal flatwood wetlands impacted by the project, an extensive search was conducted in the Brick Kiln and Deep Creeks watersheds. Flatwood wetland systems were not observed in either of these watersheds. The extensive development and the system of ponds in these two watersheds leave very limited options for coastal flatwood wetlands. The search was then expanded to the Lucas Creek and Stoney Run Watersheds. Mitigation options were very limited in these watersheds as well. These watersheds have extensive creek systems that flow through housing and commercial developments, then into more ponds.

A review of the Newport News Park located in York County yielded a site composed of a large complex of coastal flatwood wetlands that are associated with Grafton Ponds. The site is bisected along the divide between the Lower James River and the York River watersheds. Specifically, the site is divided between the Harwood Mill and Big Bethel watersheds. This mimics the development site which sits on the divide between the larger river watersheds and the smaller watersheds of Brick Kiln and Deep Creeks.

The proposed mitigation site is an approximately 80-acre site that contains over 30 acres of coastal flatwoods wetlands in association with a series of Grafton Ponds. This area was chosen because of its proximity to the mitigation sites set aside by the Airport Authority and Grafton Pond preserve. The applicant has not discussed the use of protective easements or other conservation deed restrictions for the proposed compensatory mitigation area.

The purpose of this mitigation plan is to guide stewardship of the natural resources associated with the coastal flatwood wetlands and seasonal Grafton ponds located within the 80-acre mitigation site. The objective of this Plan is to provide a sound basis for managing seasonal pond resources with a focus on the natural communities and rare biota associated with the overall community type. This objective is tied to the goal of restoring this community back to a longleaf pine/fire climax plant community. Currently, this exact community is now absent from this general location. The plant community in this area has shifted to a loblolly-hardwood complex that is devoid of fire. This has resulted in the decline of numerous plant and animal species and seasonal ponds becoming one of Virginia's rarest and most threatened wetland types. These ponds are part of a larger, nationally significant system of seasonal ponds known as the Grafton Ponds Complex. At the landscape level, this extensive concentration of seasonal ponds provides habitat for at least seven species of rare· plants and animals and represents critical breeding habitat for regionally uncommon amphibians, odonates (dragonflies and damselflies), and other invertebrates.

The applicant has put forth a mitigation plan to offset the impacts to 2.9 acres of coastal flatwood wetlands. This plan has very aggressively proposed the restoration of over 30 acres of palustrine forested wetlands and Grafton Ponds by reintroducing fire and longleaf pine to a habitat from which they have been eradicated.

In addition to the required Department of the Army permit, the applicant must obtain a Virginia Water Protection Permit from the Virginia Department of Environmental Quality (DEQ) assuring that applicable laws and regulations pertaining to water quality are not violated.  Project drawings are attached.

Permits are required pursuant to Sections 401 and 404 of the Clean Water Act (Public Law 95-217) and Title 62.1 of the Code of Virginia.

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) no environmental impact statement will be required;
(2) after conducting the NAO ESA Project Review Process, no listed/proposed/candidate species and/or designated/proposed critical habitat under the Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended) will be affected.  Based on this no effect determination, no further coordination with the Fish and Wildlife Service is required; and
(3) no known properties eligible for inclusion or included in the National Register of Historic Places are in or near the permit area, or would likely be affected by the proposal
. The Virginia Department of Game and Inland Fisheries reports that the Canebrake rattlesnake is likely to be in the proposed project area, and is a state listed endangered species. Additional information might change any of these findings.

The Virginia Department of Conservation and Recreation reports that, for the proposed mitigation area, numerous rare plants, animals, and ecological communities are found in that area. The site is an integral part of Virginia's Lower Peninsula ecosystem, and it contributes significantly to long-term species and ecosystem health. Protection is critical. The Virginia Department of Game and Inland Fisheries reports that Mabee’s salamander is likely to be in the proposed mitigation area, and is a state listed threatened species. The Virginia Department of Historical Resources reports that the mitigation area includes parts of the Battle of Yorktown (Civil War) architectural resources, DHR ID 099-5283.For compliance with the Coastal Zone Management Act of 1972, as amended for projects located in Tidewater, 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 Coastal Zone Management Program (VCP) and obtain concurrence from the Department of Environmental Quality (DEQ), Office of Environmental Impact Review (OEIR). We have not received a certification from the applicant prior to publication of this public notice.  It is the applicant’s responsibility to submit a consistency certification to the Office of Environmental Impact Review 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 here:

For more information or to obtain a list of the enforceable policies of the VCP, contact the Department of Environmental Quality, Office of Environmental Impact Review at (804) 698-4330 or e-mail: or

Comments on this project should be made by email to John Evans or in writing, include the project number NAO-2007-4170, be addressed to the Norfolk District, Corps of Engineers (ATTN:  CENAO-WR-R (Evans)), 803 Front Street, Norfolk, Va., 23510-1096, and should be received by the close of business on June 24, 2013.

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 John Evans by email at or call 757-201-7794.


Peter Kube
Chief, Western Virginia Regulatory Section

Attachment: Drawings