Attachment #6 US ACE Regional Permit RP-18.pdf

DEPARTMENT OF THE ARMY

US ARMY CORPS OF ENGINEERS

NORFOLK DISTRICT

FORT NORFOLK

803 FRONT STREET

NORFOLK VA 23510-1011

August 28, 2020

Eastern Virginia Regulatory Section NAO-2018-00183 (Appomattox River)

City of Hopewell c/o Austin Anderson 224 N. Main Street Hopewell, VA 23860

Dear Mr. Anderson:

This is in reference to the Department of the Army application NAO-2018-00183/20- V1179 you have submitted to extend the existing Riverwalk trail connecting to the eastern edge of the City Marina by constructing an 8-foot 8-inch wide by 1,420-foot long open pile timber structure along the shoreline of the Appomattox River to provide public pedestrian access to the riverfront area. The structure will be constructed on average 40 feet channelward of Mean High Water (MHW), with a maximum distance of 75 feet channelward of MHW. During construction, the work will temporarily impact 0.08 acres of vegetated wetlands for construction access and the project may convert 0.03 acres of vegetated wetlands to open water due to shading. Your proposed project, as described above and depicted on the attached drawings entitled "Riverwalk Connector (Riverwalk Phase 2) City of Hopewell, VA" dated June 30, 2020 by HDR and received by our office on July 3, 2020, satisfies the terms and conditions of Norfolk District’s Regional Permit 18 (18-RP-18), enclosed. Provided you follow all of the general and specific terms and conditions of 18-RP-18, as well as, any additional special conditions included below, no further authorization will be required from the Corps.

The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

Incidents where any individuals of sea turtles, Atlantic sturgeon, or any species listed by NOAA Fisheries under the Endangered Species Act appear to be injured or killed as a result of discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States authorized by this RP shall be reported to NOAA Fisheries, Office of Protected Resources at (301) 713-1401 and the Regulatory Office of the Norfolk District of the U.S. Army Corps of Engineers at 757-

201-7652. The finder should leave the animal alone, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where they are obviously injured or killed by discharge exposure, or some unnatural cause. The finder may be asked to carry out instructions provided by NOAA Fisheries, Office of Protected Resources, to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved.

Enclosed is a "compliance certification" form, which must be signed and returned within 30 days of completion of the project, including any required mitigation. Your signature on this form certifies that you have completed the work in accordance with the nationwide permit terms and conditions.

This verification is valid until the RP is modified, reissued, or revoked. RP 18 is scheduled to be modified, reissued, or revoked on September 5, 2023. Activities which have commenced (i.e. under construction) or are under contract to commence in reliance upon this RP will remain authorized provided the activity is completed within twelve (12) months of the date of the RP’s expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization. Activities completed under the authorization of the RP which was in effect at the time the activity was completed continue to be authorized by that RP.

The State Water Control Board provided conditional §401 Water Quality Certification for this RP. Therefore, the activities that qualify for this RP meet the requirements of the Department of Environmental Quality’s (DEQ) Virginia Water Protection Permit Regulation, provided that the permittee abides by the conditions of this RP. You will not be required to obtain a separate §401 Water Quality Certification from DEQ. This authorization does not relieve your responsibility to comply with local requirements pursuant to the Chesapeake Bay Preservation Act (CBPA), nor does it supersede local government authority and responsibilities pursuant to the Act. You should contact your local government before you begin work to find out how the CBPA applies to your project. Pursuant to the Coastal Zone Management Act (CZMA) of 1972, the Virginia Department of Environmental Quality Virginia Coastal Zone Management Program (VCP) completed its review of the Federal Consistency Determination (FCD) for this RP on August 16, 2018, and provided concurrence that this RP is consistent with the VCP.

Therefore, no further coordination with the VCP is required. Authorizations under this RP do not supersede State or local government authority or responsibilities pursuant to any State or local laws or regulations.

In granting an authorization pursuant to this permit, the Norfolk District has relied on the information and data provided by the permittee. If, subsequent to notification by the Corps that a project qualifies for this permit, such information and data prove to be materially false or materially incomplete, the authorization may be suspended or revoked, in whole or in part, and/or the Government may institute appropriate legal proceedings.

If you have any questions, please contact me at (757) 201-7489 or via email

(melissa.a.nash@usace.army.mil).

Sincerely, Melissa A. Nash Project Manager Eastern Virginia Regulatory Section

Enclosure(s)

Cc:

Josh Mace, HDR Rebecca Wilk, HDR

U.S. Army Corps Of Engineers Norfolk District

CERTIFICATE OF COMPLIANCE

WITH

ARMY CORPS OF ENGINEERS PERMIT

Permit Number: NAO-2018-00183

Name of Permittee: City of Hopewell (Riverwalk Phase II)

Date of Issuance: August 28, 2020

Permit Type: Regional Permit 18

Within 30 days of completion of the activity authorized by this permit and any mitigation required by the permit, sign this certification and return it to the following address:

Melissa Nash c/o Regulatory Branch Norfolk District Corps of Engineers 803 Front Street Norfolk, VA 23510-1096

Please note that your permitted activity is subject to a compliance inspection by a U.S.

Army Corps of Engineers representative. If you fail to comply with this permit you are subject to permit suspension, modification or revocation.

I hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of the said permit, and required mitigation has been completed in accordance with the permit conditions.

Signature of Permittee Date

AERIAL SITE MAP

APPROVED BY THE CITY OF HOPEWELL

CONSTRUCTION MANAGER DATE

CITY ENGINEER DATE

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18-RP-18 1

U.S. Army Corps Of Engineers Norfolk District

Fort Norfolk, 803 Front Street Norfolk, VA 23510-1011

CENAO-WRR

18-RP-18

REGIONAL PERMIT

Effective Date: September 5, 2018 Expiration Date: September 5, 2023

I. AUTHORIZED ACTIVITIES:

18-RP-18, Regional Permit 18 (RP), authorizes the installation and/or construction of open-pile piers, mooring structures/devices, fender piles, covered boathouses/boat slips, boatlifts, osprey pilings/platforms, accessory pier structures, and certain devices associated with shellfish gardening, for private, commercial, community, and government use, subject to strict compliance with all conditions and limitations further set out herein.

II. AUTHORITIES:

For projects located within the Commonwealth of Virginia, project proponents are hereby authorized by the Secretary of the Army and the Chief of Engineers pursuant to Section 10 of the River and Harbors Act of 1899 ((33 U.S.C. § 403) to perform the aforementioned work in navigable waters of the United States of the Commonwealth pursuant to the terms and conditions herein.

Activities authorized under this RP do not require further authorization under the provisions contained in 33 CFR Part 325 unless the District Engineer determines, on a case-by-case basis, that additional review is in the public interest. All work undertaken outside the following conditions, terms, and limitations will require separate Department of the Army authorization.

III. STATE AND LOCAL APPROVALS:

1. Prospective permittees may be required to obtain additional state and/or local approvals prior to commencement of work in waters of the U.S. from the Virginia Department of Environmental Quality (DEQ), the Virginia Marine Resources Commission (VMRC) and/or the local wetlands board. You may contact the DEQ at (804) 698-4000, the VMRC at (757) 247-2200, and/or your local government office for further information concerning their permit requirements.

2. The State Water Control Board provided conditional §401 Water Quality

Certification for the 18-RP-18. As such, the activities that qualify for this RP meet

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the requirements of Department of Environmental Quality’s (DEQ) Virginia Water Protection Permit Regulation, provided that the permittee abides by the §401 Water Quality Certification condition, below, and all of the terms and conditions of

18-RP-18.

§401 Water Quality Certification Conditions:

a) The discharge shall not include structures such as pilings to construct a platform to mount a pump for water withdrawals unless otherwise excluded from surface water withdrawal permitting per 9VAC-25-210- 310.

b) The impact(s) shall not exceed 2 acres of wetlands or 1,500 linear feet of stream bed.

c) Any compensatory mitigation shall meet the requirements in the Code of Virginia, Section 62.1-44.15:23 A through C, except in the absence of same river watershed alternatives in Hydrologic Unit Codes (HUC) 02040303 and 02040304, single family dwelling or locality projects may use compensatory mitigation in HUC 02080102, 02080108, 02080110, or 02080111 in Virginia.

d) For water-based energy projects using similar structures, the discharge shall not include water withdrawals, such as the construction of an intake structure, weir, water diversion structure, or other structure transporting non-potable raw surface water.

3. Those activities on the Potomac River extending channelward of the mean low water line may require authorization by the Virginia Marine Resources Commission (VMRC) and/or the Maryland Department of Natural Resources.

4. Authorization may also be needed from the Tennessee Valley Authority for projects constructed on the Clinch and Holston Rivers.

5. Pursuant to the Coastal Zone Management Act (CZMA) of 1972, the Virginia Department of the Environmental Quality, Virginia Coastal Zone Management Program completed its review of the Federal Consistency Determination and issued its conditional concurrence on August 16, 2018. Specifically, DEQ concurs that the RPs and General Conditions are consistent to the maximum extent practicable with the Virginia CZM Program provided that the following conditions are satisfied:

a. Prior to construction, applicants shall obtain all required permits and approvals for the activities to be performed that are applicable to the enforceable policies and that applicants adhere to all conditions contained therein.

b. The activities that qualify for the RPs meet the requirements of DEQ’s Virginia Water Protection Permit Regulation and the permittee abides by

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the conditions of the RP as certified under Section 401 of the Clean Water Act.

6. Permittees should ensure that their projects are designed and constructed in a manner consistent with all state and local requirements pursuant to the Chesapeake Bay Preservation Act and the Chesapeake Bay Preservation Area Designation and Management Regulations.

7. Authorizations under this RP do not supersede state or local government authority or responsibilities pursuant to the Chesapeake Bay Preservation Act, the Virginia Tidal Wetlands Act, or to any State or local laws or regulations.

IV. PROCEDURES:

Prospective permittees must submit a pre-construction notification (PCN) in accordance with the procedures outlined below and in General Condition 33: Pre-construction Notification. No work is authorized under this Regional Permit (RP) until the Corps issues the permittee a written permit verification.

1. Within Virginia, the U.S. Army Corps of Engineers, Norfolk District encourages perspective permittees to utilize the Joint Permit Application (JPA) as the pre-construction notification. The JPA is also used to apply for corresponding permits from the Virginia Marine Resources Commission, the Virginia Department of Environmental Quality, and/or Local Wetlands Boards. The JPA process and JPA forms are used by the Corps, the VMRC, the DEQ, and the LWB for permitting purposes involving tidal and/or non-tidal water, tidal and/or non-tidal wetlands, and/or dune/beach resources, including, but not limited to, construction, dredging, filling, or excavation. Read the directions on the application carefully to determine how many copies must be submitted to the VMRC, who acts as the clearinghouse for permit applications. Prospective permittees may obtain paper copies of the JPA by calling the Corps at (757) 201- 7652, or by downloading the form on the Norfolk District Regulatory Webpage:

http://www.nao.usace.army.mil/Missions/Regulatory/JPA.aspx.

2. The following additional information must be included in the PCN and/or on the drawings in order for the PCN to be considered complete:

a. The prospective permittee MUST provide written justification/need for the encroachment if the proposed structure(s) will extend greater than one-fourth of the distance across the waterway measured from either mean high water to mean high water (including all channelward wetlands) or ordinary high water to ordinary high water (including all channelward wetlands). The measurement should be based on the narrowest distance across the waterway regardless of the orientation of the proposed structure(s).

http://www.nao.usace.army.mil/Missions/Regulatory/JPA.aspx

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b. The prospective permittee MUST provide written justification/need if the proposed structure(s) is greater than five (5) feet wide or there will be less than four (4) feet elevation between the decking and the vegetated wetlands substrate.

c. The Corps MAY require depth soundings across the waterway at increments designated by the Corps project manager. Inclusion of depth sounding data in the PCN submittal is highly recommended in order to expedite permit evaluation. Depth soundings are typically taken at 10-foot increments for waterways less than 200 feet wide and 20-foot increments for waterways greater than 200 feet wide. Please include the date and time the measurements were taken, whether the data was collected at mean low water (MLW) or MHW, and how the soundings were taken (e.g., tape, range finder, etc.).

V. PERMIT SPECIFIC CONDITIONS:

This RP shall not be interpreted as authorizing any work other than that which strictly meets all terms and conditions set out herein. All work undertaken that does not strictly comply with the terms and conditions will require separate Department of the Army authorization.

1. Proposed structures that extend greater than one-fourth of the distance across the waterway measured from either mean high water to mean high water (including channelward wetlands) or ordinary high water to ordinary high water (including all channelward wetlands) may be authorized under this RP if:

a. The prospective permittee provides written justification/need for the encroachment (i.e. to reach the deeper water within the waterway for navigational purposes).

b. The Corps determines that the proposed activity does not individually or cumulatively adversely affect general navigation and/or the aquatic environment.

2. Proposed structures crossing wetland vegetation that exceed five (5) feet in width and/or has less than four (4) feet between the decking and the vegetated wetlands substrate may be authorized under this RP if:

a. The prospective permittee provides written justification/need for the increased width of the structure and/or decreased height between the decking the vegetated wetlands substrate.

b. The Corps determines that the proposed activity does not individually or cumulatively adversely affect general navigation and/or the aquatic environment.

3. Proposed structures being constructed in and/or over wetland areas must attach to the upland at a point landward of mean high water or ordinary high water (including all channelward wetlands).

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4. For the construction or expansion of community, commercial, and/or government piers and structures:

a. This RP covers all open-pile piers, docks, and wharfs associated with the construction or expansion of any community, commercial, or government facility whose primary use is commercial, governmental, and/or recreational. This includes, but is not be limited to, community fishing piers, piers at seafood processing facilities, piers at boat repair facilities, piers at marine terminals, recreational piers located on military installations, piers for military associated operational facilities utilized for training, aggregate handling facilities, and other non-recreational facilities.

b. If the original purpose of the structure or facility changes, the permittee must submit a request for a permit modification (i.e. a recreational marina to a grain loading facility or coal handling facility).

5. For mooring structures/devices, pilings, and fender piles:

a. This RP covers all such structures, either isolated or part of large facilities, for private, commercial, community, or government use. This includes, but is not limited to, mooring buoys, mooring balls, mooring piles, mooring dolphins, mooring camels, fender piles, and osprey pilings/platforms at private piers, community piers, seafood processing facilities, boat repair facilities, marine terminals, military installations and other commercial and/or recreational facilities.

b. If the original purpose of the structure or facility changes, the permittee must submit a request for a permit modification.

6. This RP covers private, public, commercial and/or government mooring structures/devices. The location and maximum radius of swing including the moored vessel’s length must be included on the drawings as part of the PCN.

The activity may also require U.S. Coast Guard approval, and it is up to the prospective permittee to obtain the Coast Guard’s approval.

7. If the proposed structure(s) includes floatation units, the units must be made of materials that will not become waterlogged or sink if punctured. Floating sections must be braced so they will not rest on the bottom during periods of low water.

8. The proposed structure(s) must be made of suitable materials and be of practical design so as to reasonably ensure a safe and sound structure.

9. The proposed structure(s) (including any moored vessels) must be located on the property in accordance with the local zoning requirements.

10. If the proposed structure(s) includes a device used for shellfish gardening, the device must be attached directly to a pier and is limited to a total of 160 square feet.

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Note: This RP does not negate the permittee’s responsibility to obtain an oyster gardening permit from Virginia Marina Resources Commission’s Habitat Management Division for their shellfish gardening device.

11. This RP does not authorize any dredging or filling of waters of the United States

(including wetlands) and does not imply that future dredging proposals will be approved by the Corps.

12. By accepting this RP, the permittee accepts all of the terms and conditions of this permit, including the limits of Federal liability contained herein. The permittee acknowledges that the structures permitted herein may be exposed to waves caused by passing vessels and that the permittee is solely responsible for the integrity of the structures permitted herein and the exposure of such structures and vessels moored to such structures to damage from waves. The permittee accepts that the United States is not liable in any way for such damage and that it shall not seek to involve the United States in any actions or claims regarding such damage.

VI. GENERAL CONDITIONS:

1. Navigation:

a. No activity may cause more than a minimal adverse effect on navigation.

b. Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee’s expense on authorized facilities in navigable waters of the U.S. The U.S.

Coast Guard may be contacted at the following address: Commander (oan), Fifth Coast Guard District, Federal Building, 431 Crawford Street, Portsmouth, Virginia 23704 or by telephone: (757) 398-6230.

c. The permittee understands and agrees that if future operations by the United

States require the removal, relocation, or other alteration of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his/her authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

2. Aquatic Life Movements: No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species which normally migrate through the area, unless the activity’s primary purpose is to impound water. All permanent and temporary

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crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements.

3. Spawning Areas: Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized.

4. Migratory Bird Breeding Areas: Activities in waters of the U.S. that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable.

5. Shellfish Beds: No activity may occur in areas of concentrated shellfish populations.

6. Submerged Aquatic Vegetation (SAV) Beds: Activities in SAV beds must be avoided and minimized to the maximum extent practicable. Avoidance and minimization measures, such as relocating a structure and/or the implementation of a time-of-year restriction for work in waters, may be required to reduce impacts to the SAV habitat. Information regarding SAV may be found at the Virginia Institute of Marine Science’s website at: http://web.vims.edu/bio/sav/.

7. Suitable Material: No activity may use unsuitable material (e.g. trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act).

8. Water Supply Intakes: No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public waters supply intake structures or adjacent bank stabilization.

9. Adverse Effects from Impoundments: If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable.

10. Management of Water Flows: To the maximum extent practicable, the pre-construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound waters or manage high flows. The activity may alter the pre-construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities).

http://web.vims.edu/bio/sav/

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11. Fills Within 100-Year Floodplains: The activity must comply with applicable FEMA-approved state or local floodplain management requirements.

12. Equipment: Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance.

13. Soil Erosion and Sediment Controls: Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the U.S. during periods of low-flow or no-flow, or during low tides.

14. Invasive Species: Plant species listed by the most current version of Virginia Department of Conservation and Recreation’s (DCR) Invasive Alien Plan List shall not be used for re-vegetation for activities authorized by these regional permits. The list of invasive plants in Virginia may be found at:

http://www.dcr.virginia.gov/natural-heritage/invsppdflist. The DCR recommends the use of regional native species for re-vegetation as identified in the DCR Native Plants for Conservation, Restoration and Landscaping brochures:

http://www.dcr.virginia.gov/natural-heritage/nativeplants#brochure or by using the DCR native plant finder: http://www.dcr.virginia.gov/natural-heritage/native-plants-finder.

15. Removal of Temporary Fills and Impacts: The soils of any temporarily impacted areas located in wetlands that are cleared, grubbed, and/or filled, must be restored once these areas are no longer needed for their authorized purpose, no later than completion of project construction, and not to exceed twelve (12) months after commencing the temporary impacts. To restore, temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations, the soil surface loosened by ripping or chisel plowing to a depth of 8-12”, and then seeded using native wetland species. See General Condition 14: Invasive Species for more information on vegetation recommendations.

Fill or dredged material into waters of the U.S. that are not removed within the 12 month period will be considered a permanent impact, unless otherwise determined by the Corps. This additional impact to waters of the U.S. may result in the Corps initiating a permit non-compliance action which may include, but not limited to, a restoration order, after-the-fact permitting, and/or compensatory mitigation.

16. Proper Maintenance: Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable RP conditions, as well as any activity-specific conditions added by the District Engineer to an RP authorization.

http://www.dcr.virginia.gov/natural-heritage/invsppdflist http://www.dcr.virginia.gov/natural-heritage/nativeplants#brochure http://www.dcr.virginia.gov/natural-heritage/native-plants-finder http://www.dcr.virginia.gov/natural-heritage/native-plants-finder

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17. Single and Complete Project: The activity must be a single and complete project.

The same RP cannot be used more than once for the same single and complete project. For purposes of this RP, a single and complete project means the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. A single and complete non-linear project must have independent utility. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area.

18. Wild and Scenic Rivers: Currently, there are no designated Wild and Scenic Rivers in the Commonwealth of Virginia. No RP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system, while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river has determined, in writing, that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service).

19. Tribal Rights: No RP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.

20. Endangered Species:

a. No activity is authorized under this RP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under this RP which “may affect” a listed species or critical habitat, unless ESA Section 7 consultation addressing the effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species and critical habitat caused by the RP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the RP activity and are later in time, but still reasonably certain to occur.

b. Federal permittees should follow their own procedures for complying with the requirements of the ESA. The Federal permittee must provide the District Engineer with the appropriate documentation to demonstrate compliance with those requirements. The District Engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA.

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c. Non-federal permittees shall submit a pre-construction notification to the District Engineer if any proposed or listed species or proposed or designated critical habitat may be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. Information on the location proposed/listed species and proposed/designated critical habitat can be obtained directly from the U.S. Fish and Wildlife (USFWS) online project review process at:

https://www.fws.gov/northeast/virginiafield/endangered/projectreviews.html and from the National Marine Fisheries Service (NMFS) at:

http://www.nmfs.noaa.gov/pr/species/.

The District Engineer will determine whether the proposed activity "may affect" or will have "no effect" to listed species or designated critical habitat and will notify the non-Federal permittee of the Corps' determination. In cases where the non-Federal permittee identified listed species or designated critical habitat that might be affected or is in the vicinity of the project, and has so notified the Corps, the permittee shall not begin work until the Corps has provided notification the proposed activities will have "no effect" on listed species or designated critical habitat, or until Section 7 consultation has been completed.

If the District Engineer determines that the proposed activity may affect a listed species or designated critical habitat, the Corps will initiate consultation with the USFWS. The USFWS developed an online system to allow permittees and agencies to find information about sensitive resources that may occur within the vicinity of a proposed project. This system is named “Information, Planning and Conservation System,” (IPaC), and is located at:

https://ecos.fws.gov/ipac/.

Additional consultation may also be required with the NMFS for species or critical habitat under their jurisdiction, including sea turtles, marine mammals, Shortnose Sturgeon, and Atlantic Sturgeon. For additional information about their jurisdiction in Virginia, please visit:

https://www.greateratlantic.fisheries.noaa.gov/protected/index.html.

d. As a result of formal or informal consultation with the USFWS or NMFS the

District Engineer may add species-specific regional endangered species conditions to the RP.

e. Authorization of an activity by this RP does not authorize the "take" of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the USFWS or NMFS, the ESA prohibits any person subject to the jurisdiction of the United States to take a listed species, where “take” means to harass, harm, pursue, hunt, https://www.fws.gov/northeast/virginiafield/endangered/projectreviews.html http://www.nmfs.noaa.gov/pr/species/ https://ecos.fws.gov/ipac/ https://www.greateratlantic.fisheries.noaa.gov/protected/index.html

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shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take” means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

f. If the non-federal permittee has a valid ESA Section 10(a)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed RP activity, the non-federal permittee should provide a copy of that ESA Section 10(a)(1)(B) permit in the Joint Permit Application. The District Engineer will coordinate with the agency that issued the ESA Section 10(a)(1)(B) permit to determine whether a separate ESA Section 7 consultation is needed.

21. Migratory Birds and Bald and Golden Eagle Protection Act: The Bald Eagle (Haliaeetus leucocephalus) is no longer a federally listed threatened or endangered species; therefore, the Endangered Species Act provisions are not applicable to this species. The Bald and Golden Eagle Protection Act (BGEPA) does not require that a federal agency involved in permitting the proposed action conduct coordination. The permittee is responsible for obtaining any “take” permits required under the U.S. Fish and Wildlife Service’s regulations governing compliance with the Migratory Bird Treaty Act or the BGEPA. The permittee should either obtain “take” permit or a letter of concurrence from USFWS indicating that a permit is not necessary prior to initiating construction activities.

You should contact USFWS concerning this matter at U.S. Fish and Wildlife Service, Virginia Field Office, 6669 Short Lane, Gloucester, VA 23061.

Information on active bald eagle nests and concentration areas can be obtained in Step 6 of the U.S. Fish and Wildlife Service’s online project review system available at:

https://www.fws.gov/northeast/virginiafield/endangered/projectreviewprocess.html.

22. Essential Fish Habitat: The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-297; 11 October 1996), requires all Federal agencies to consult with the NOAA Fisheries Service Habitat Conservation Division (NOAA HCD) on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH). The EFH Designations within the Northeast Region (Maine to Virginia), dated March 1, 1999, has identified EFH for a number of species and their life stages within Virginia waters. If EFH consultation is required with NOAA HCD, the permittee shall not begin work until the Corps has provided notification that the EFH consultation has concluded.

23. Anadromous Fish: Authorizations associated with this RP shall not adversely affect documented spawning habitat or a migratory pathways for anadromous fish. Areas of anadromous fish use are indicated on the Virginia Department of https://www.fws.gov/northeast/virginiafield/endangered/projectreviewprocess.html

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Game and Inland Fisheries (VDGIF) information system at:

http://vafwis.org/fwis/. If a project is located within an area documented as an anadromous fish use area (confirmed or potential), all in-stream work is prohibited from occurring between February 15 through June 30 of any given year or other time of year restriction (TOYR) specified by the VDGIF and/or the Virginia Marine Resources Commission (VMRC). Should the Norfolk District determine that the work is minimal and no TOYR is needed the District will initiate consultation with NOAA Fisheries Service for their concurrence.

A TOYR is not required for dredging activities in the Elizabeth River upstream of the Mid-Town Tunnel on the main-stem and the West Norfolk Bridge (Route 164, Western Freeway) on the Western Branch of the Elizabeth River.

24. Designated Critical Resource Waters and National Estuarine Research

Reserves: This RP does not authorize the discharge of dredged or fill material into the Chesapeake Bay National Estuarine Research Reserve (Reserve) in Virginia. This Reserve is a multi-site system along a salinity gradient of the York River, which includes Sweet Hall Marsh, Taskinas Creek, Catlett Islands, and Goodwin Islands. Additional information may be found at:

http://www.vims.edu/cbnerr/.

25. Trout Waters: Designated Trout Waters, as defined by the Virginia State Water Control Board and the Virginia Department of Game and Inland Fisheries (VDGIF), occurring specifically within the mountains of Virginia, are within the following river basins:

• Potomac-Shenandoah Rivers

• James River

• Roanoke River

• New River

• Tennessee and Big Sandy Rivers

• Rappahannock River

The Virginia Department of Game and Inland Fisheries (VDGIF) recommends the following time-of-year restrictions (TOYR) for any in-stream work within waters identified as wild trout waters. The recommended TOYRs for trout species are:

• Brook Trout: October 1 through March 31

• Brown Trout: October 1 through March 31

• Rainbow Trout: March 15 through May 15

This requirement applies to all waters of the U.S. within the following counties and cities: Albemarle, Allegheny, Amherst, Augusta, Bath, Bedford, Bland, Botetourt, Bristol, Buchanan, Buena Vista, Carroll, Clarke, Covington, Craig, Dickenson, Floyd, Franklin, Frederick, Giles, Grayson, Greene, Henry, Highland, Lee, Loudoun, Madison, Montgomery, Nelson, Page, Patrick, Pulaski, http://vafwis.org/fwis/ http://www.vims.edu/cbnerr/

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Rappahannock, Roanoke City, Roanoke Co., Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Staunton, Tazewell, Warren, Washington, Waynesboro, Wise, and Wythe.

The Corps will coordinate the permit request with the Virginia Department of Environmental Quality (DEQ) and/or the VDGIF. Comments from DEQ and VDGIF will be fully considered before the Corps makes a final decision on the project. Additional information regarding trout waters can be found at:

https://www.dgif.virginia.gov/.

26. Historic Properties:

a. In cases where the activity may affect properties listed, or eligible for listing on the National Register of Historic Places, the activity is not authorized until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied.

b. Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the Corps with the appropriate documentation to demonstrate compliance with those requirements. The Corps will review the documentation and determine whether it is sufficient to address Section 106 compliance for the RP activity, or whether additional Section 106 consultation is necessary.

c. Non-federal permittees must submit a statement to the Corps regarding the authorized activity’s potential to cause effects to any historic properties listed, or determined to be eligible for listing on the National Register of Historic Places, including previously unidentified properties. The statement must say which historic properties may be affected by the proposed work or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location or potential for the presence of historic resources can be sought from the Virginia Department of Historic Resources (VDHR) at:

http://www.dhr.virginia.gov/ or Tribal Historic Preservation Officer (THPO), as appropriate, and the National Register of Historic Places. Where an permittee has identified historic properties which the proposed activity may have the potential to affect, the permittee shall not begin the activity until notified by the Corps that the activity has no potential to cause effects or that consultation under Section 106 of the NHPA has been completed.

d. Prospective permittees should be aware that Section 110(k) of the NHPA (16 U.S.C. § 470(h)-2(k)) prevents the Corps from granting a permit or other assistance to an permittee who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, https://www.dgif.virginia.gov/ http://www.dhr.virginia.gov/

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after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effects created or permitted by the permittee. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, explaining the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the permittee, SHPO/ THPO, appropriate Indian tribes if the undertaking occurs on or affect historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have legitimate interest in the impacts to the permitted activity on historic properties.

27. Discovery of Previously Unknown Remains and Artifacts: If you discover any previously unknown historic, cultural, or archaeological remains and artifacts while accomplishing activities authorized by this permit, you must immediately stop work and notify the Corps of what has been found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The Corps will initiate Federal, Tribal, and State coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.

28. Mitigation: Mitigation in all its forms (avoiding, minimizing, or compensating for resource losses) may be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal. The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the U.S. to the maximum extent practicable at the project site (i.e., on site).

29. Use of Multiple Regional Permits: This RP may be combined with any Corps general permits (including Nationwide (NWP) or Regional Permits (RP)) for a single and complete project, as long as the acreage loss of waters of the U.S.

authorized by the NWPs/RPs does not exceed the acreage limit of the NWP/RP with the highest specified acreage limit.

30. Transfer of Regional Permit Verifications: If the permittee sells the property associated with the RP verification, the permittee may transfer the verification to the new owner by submitting a letter to the appropriate Corps District Office to validate the transfer. A copy of the RP verification must be attached to the letter, and the letter must contain the following statement and signature:

“When the structures or work authorized by the Regional Permit are still in existence at the time the property is transferred, the terms and conditions of this regional permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of the Regional Permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.”

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(Transferee)

(Date)

31. Compliance Certification: A Certificate of Compliance, enclosed with the Corps’ written authorization for the activity, must be completed and a copy retained for your records. The original Certificate of Compliance shall be mailed to, U. S.

Army Corps of Engineers, Regulatory Branch, 803 Front Street, Norfolk, Virginia 23510-1011, or to the Regulatory Field Office listed on the Certificate of Compliance, within 30 days of completion of the authorized activity.

32. Activities Affecting Structures or Works Built by the United States: If the RP activity also requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a Corps federally authorized Civil Works project, the activity that requires section 408 permission is not authorized by the RP until the appropriate Corps District office issues the section 408 permission to alter, occupy, or use the Corps Civil Works project, and the District Engineer issues a written RP verification.

Contact a Norfolk District Regulatory Project Manager to assist in determining if your proposed activity might alter or temporarily or permanently occupy or use a Corps of Engineers Civil Works project.

Locations of Norfolk District Civil Works projects can be found at:

http://www.nao.usace.army.mil/Portals/31/docs/regulatory/RPSPdocs/RP- 17_Corps_Project_Maps.pdf.

For projects located within the Civil Works boundary of the Baltimore, Huntington, Nashville or Wilmington District, please contact a Norfolk District Project Manager for assistance.

33. Pre-Construction Notification: Prior to commencing the activity, prospective permittees (“permittees”) must submit a Pre-construction Notification (PCN) to the District Engineer, unless otherwise specified in the RP, and must receive written notification from the Corps acknowledging that the project is authorized pursuant to this RP.

Notification to the Corps must be in writing (the Joint Permit Application may also be used, as described below) and must include the following information:

• Name, address and telephone number of the prospective permittee;

• Name, address and telephone number of the property owner, if different from the prospective permittee;

• Location of the project (including Tax Parcel ID Number, if available);

http://www.nao.usace.army.mil/Portals/31/docs/regulatory/RPSPdocs/RP-17_Corps_Project_Maps.pdf http://www.nao.usace.army.mil/Portals/31/docs/regulatory/RPSPdocs/RP-17_Corps_Project_Maps.pdf

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• Vicinity map, aerial photograph, and/or drawing accurately showing the extent of proposed activity and the extent of waters of the U.S., including wetlands. Drawings, plans and/or sketches should contain sufficient detail to project an illustrative description of the proposed activity;

• Identify the specific RP or RPs the prospective permittee wants to use to authorize the proposed activity;

• A description of the proposed activity; the activity’s purpose; direct and indirect adverse environmental effects the activity would cause, including the anticipated amount of loss of wetlands, other special aquatic sites, and other waters expect to result from the RP activity, in acres, linear feet or other appropriate unit of measure; a description of any proposed mitigation measures; and any other Corps permit used or intended to be used to authorize any part of the proposed project or any related activity.

• A delineation of special aquatic sites and other waters of the U.S. on the project site. Wetland delineations must be prepared in accordance with the current method required by the Corps.