H.01.04_Specifications_FY 21 Skiffes Creek Maintenance Dredging Volume 2(appendices).pdf

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18-RP-02 1

U.S. Army Corps Of Engineers Norfolk District Fort Norfolk, 803 Front Street

Norfolk, VA 23510-1011

CENAO-WRR

18-RP-02

REGIONAL PERMIT

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

I. AUTHORIZED ACTIVITIES:

18-RP-02, Regional Permit 02 (RP), authorizes both new and maintenance dredging (channels and basins) for certain navigation-related dredging projects, by either mechanical or hydraulic method, in waters of the U.S. This RP authorizes these activities within the geographical limits of the Commonwealth of Virginia under the regulatory jurisdiction of the Norfolk District Army Corps of Engineers (Corps), subject to the terms and conditions further set out herein:

1. Maintenance Dredging for Previously Authorized Projects:

a. For the purposes of this Regional Permit (RP), maintenance dredging means dredging only within the actual areas and to the actual depths dredged, as authorized with the most recent Department of the Army (DA) Permit.

b. Prospective permittees must document that a previous DA permit authorized dredging in the project area. The prospective permittee must demonstrate that the project area proposed for maintenance dredging does not exceed the limits specified in the previous DA Permit.

2. New Dredging:

a. The dredging authorized by this permit shall not exceed a surface area of two (2) acres.

b. The depth of dredging of access channels shall not exceed controlling depths of ingress/egress.

c. Newly dredged channels shall have a bottom width of at least 20 feet, unless the Corps determines that a narrower channel would not compromise safe navigation and the 20-foot minimum is waived in writing by the District Engineer.

d. In tidal waters, dredging is limited to areas below mean low water.

e. In non-tidal waters, dredging is limited to areas below the Ordinary High

Water Mark (OHWM).

f. No dredging of cobble habitat, intertidal mudflats, wetlands, shellfish beds, coral reefs, or submerged aquatic vegetation is authorized.

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3. Discharges of Dredged Material into Waters of the U.S. associated with Maintenance or New Dredging:

a. This RP authorizes, pursuant to Section 404 of the Clean Water Act, a discharge of dredged material, other than incidental fallback1, into non-tidal waters of the U.S. for the following activities:

i. Discharge of Dredged Material Due to Dredging Method: Certain types of dredging methods (i.e. mechanical) often result in a discharge (redeposit) of dredged material into the water of the U.S. during operation. This discharge is authorized with this RP provided:

1. The permittee demonstrates, to the satisfaction of the Corps, that the discharge of dredged material associated with the method of dredging is unavoidable.

2. The permittee demonstrates, to the satisfaction of the Corps, that the discharge of dredged material associated with the method of dredging would be minimized to the maximum extent practicable.

3. The discharge (redeposit) of dredged material into waters would occur only as a result of the dredging method.

4. The discharge (redeposit) of dredged material into waters would only occur within the footprint of the dredging activity.

5. The total amount of dredged material would not exceed 5,000 cubic yards.

6. The total surface area of dredging would not exceed two (2) contiguous acres.

ii. Discharge of Return Water from Disposal Area: The return water from a contained disposal area is administratively defined as a discharge of dredged material2, even though the disposal area itself may not be located in a waters of the U.S. The discharge is authorized with this RP provided:

1. The quality of the return water is regulated by the state through the

Section 401 certification procedures.

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 Rivers and Harbors Act of 1899 (33 U.S.C. § 403) and/or Section 404 of the Clean Water Act (33 U.S.C. § 1344) to perform the aforementioned work in waters of the U.S. pursuant to the terms and conditions herein.

1 33 CFR323.2(d)(2) 2 33 CFR 323.2(d)(1)(ii)

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Activities receiving written authorization 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 local government office for further information concerning permit requirements.

2. The State Water Control Board provided conditional §401 Water Quality Certification for the 18-RP-02. As such, the activities that qualify for this RP meet 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-02.

§401 Water Quality Certification Condition: For activities #2 (New Dredging) and #3 (Discharges of Dredged Material into Waters of the U.S. associated with Maintenance or New Dredging):

a) Dredging shall not be used to create a deep space for water withdrawal.

b) 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 dwellings or locality projects may use compensatory mitigation in HUC 02080102, 02080108, 02080110, or 02080111 in Virginia.

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

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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 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:

1. Prospective permittees must submit a pre-construction notification (PCN) in accordance with the procedures outlined below and must receive written authorization from the Corps before any work may begin. This RP shall not be interpreted as authorizing any work other than which is outlined above and which strictly meet all terms and conditions set out herein. All work undertaken that does not strictly comply with the following terms, conditions, standards and limitations will require separate Department of the Army authorization.

2. Within Virginia, the U.S. Army Corps of Engineers, Norfolk District encourages prospective 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. Prospective permittees should 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 Joint Permit Applications by calling the Corps at (757) 201-7652, or by downloading and using one of the two versions of the JPA on the Norfolk District Regulatory Webpage:

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

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3. 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 distance of toe of channel from the channelward edge of mudflats and vegetated wetlands.

b. The buffer distance (buffer distance = depth of dredging x 4) between the toe of the channel and the wetlands as determined by using the “4X buffer” guidance developed by the Virginia Institute of Marine Science (VIMS) in the Virginia Wetlands Report No. 93-8, entitled “Mid-Atlantic Wetland Compensatory Mitigation Workshop,” pages 7, dated Summer 1993.

c. Existing bathymetric depth profile (i.e. depth soundings) referenced to local tidal or geodetic datum.

d. Information on the dredged material management (dredge disposal) site including location maps, drawings, and a description of the methods of transporting the material to the dredged material management site.

e. Any structures (i.e. piers, boat lifts) required to provide access to the proposed dredging. (Note: Piers and related structures are not authorized by this permit, but may be authorized under other general permits.)

f. For maintenance dredging projects, a cover letter describing the proposed dredging activity and a copy of any previous Department of the Army permit(s) must be submitted in order to initiate the permit evaluation for the proposed maintenance project.

4. On a case-by-case evaluation, the Corps may determine that a “Tier 1” or additional testing of the sediment to be dredged is required to evaluate the potential for contaminants. If testing is required, a sampling and analysis plan shall be submitted to the Norfolk District for approval. Testing results must be submitted to, and approved by, the Norfolk District prior to dredging. The evaluation of dredged material for inland disposal will follow the guidance in the “Evaluation of Dredged Material Proposed for Discharge in Waters of the U.S. - Testing Manual (Inland Testing Manual), dated February, 1998, or the most current version. The manual may be downloaded from the Environmental Protection Agency website:

http://water.epa.gov/type/oceb/oceandumping/dredgedmaterial/testing.cfm.

V. PERMIT SPECIFIC CONDITIONS:

1. In order to protect vegetated wetlands, a buffer distance of four times the depth of dredging, i.e. “4X Buffer”, must be maintained between the toe of the dredged channel and the channelward edge of the vegetated wetlands. The buffer distance is to be determined by using the guidance developed by Virginia Institute of Marine Science (VIMS) in the Virginia Wetlands Report No. 93-8, entitled “Mid-Atlantic Wetland Compensatory Mitigation Workshop,” pages 7, dated Summer 1993, which explains how to properly obtain the “4X Buffer” distance. This report can be found at the following website:

http://ccrm.vims.edu/publications/publications_topics/vwr/vwr-summer93.pdf

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2. Corps authorization of the dredging is to a certain depth at mean low water and/or ordinary high water, referenced to local tidal or geodetic datum, as outlined on drawings provided by the prospective permittee with the pre-construction notification. The Corps-approved permitted depth includes any advance maintenance, allowable over depth, and/or margin of error. Exceeding this depth will be considered a violation of the terms and conditions of this permit. The Permittee is responsible for compliance with the terms and conditions of this RP, regardless of who performs the work. The Permittee shall ensure contractors and/or workers have knowledge of the terms and conditions of the RP. The only way to legally dredge deeper is to apply for, and be granted, a new permit verification before the dredging occurs. If the requested modifications exceed the terms and conditions of this RP then an Individual Department of the Army permit will be required.

3. Periodic maintenance dredging may be performed until expiration of this regional permit authorization. Each maintenance dredging event is limited to the removal of material at a depth no deeper than the current authorized dredge depth.

Following the initial dredging event, the permittee must contact the Corps, in writing, a minimum of two weeks in advance of each subsequent maintenance dredging activity. Maintenance dredging must use the same dredged material disposal site as authorized under this current RP authorization; if a new disposal site is necessary, a written permit verification is required from the Corps prior to maintenance dredging.

4. All piers, associated structures (e.g., boatlifts, mooring piles, etc.) and vessels, whether existing or proposed under a different permit, will be located outside the channel.

5. Any authorized dredging located adjacent to certain resources (including shellfish beds, submerged aquatic vegetation, and anadromous fish use areas) will require a time of year restriction (TOYR), unless determined unnecessary through additional agency coordination. The TOYR indicates the time of any given year that the authorized dredging cannot be performed in order to protect these resources. The TOYR for these resources are as follows:

Shellfish beds: March 1 through September 30 Submerged Aquatic Vegetation: March 1 through October 31 Anadromous Fish Use Areas: February 15 through June 30

6. All dredged material must be disposed of in an approved dredged material disposal site, in an approved upland disposal site, or at the Craney Island Dredged Material Management Area/Rehandling Basin. The disposal of dredged material into waters of the U.S. (including wetlands) is not authorized by this permit, except at approved dredged material disposal sites. Currently approved dredged material management sites do not include ocean disposal sites; use of ocean disposal must be permitted under separate authorization.

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7. If an upland disposal site is to be utilized, the site must be properly designed to contain the material and have proper erosion and sedimentation controls to prevent overtopping and re-entry into the waterway. In addition, the prospective permittee must adequately address the need for liner or impermeable material to prevent leaching of any identified contaminants into ground water.

8. Craney Island Dredged Material Management Area (CIDMMA) and Craney Island Rehandling Basin (CIRB):

a. The prospective permittee may request to use CIDMMA and/or CIRB, and the Corps will consider the request in accordance with the PL3 and District policy;

requirements include specification that work must be related to the development or maintenance of navigation improvements in the Norfolk Harbor and adjacent channels. You must receive specific approval in your permit in order to dispose of dredged material at CIDMMA and/or CIRB.

b. The dredged material will be transported by barge to CIRB or by pipeline to the CIDMMA. If the CIDMMA or the CIRB become unavailable for use as a dredged material placement area during the terms of this authorization, you will be responsible for finding an alternate placement area and having it approved by this office prior to any further dredging.

c. Permitted users of CIDMMA and all associated dredged material placement operations shall comply with the current version of the Army Corps of Engineers, Norfolk District, Commander’s Policy Memorandum Number WRD-01, "Deposition of Dredged Material and use of the Craney Island Dredged Material Management Area, Norfolk Harbor, Virginia".

d. The form titled "Deposit of Material into Craney Island" must be completed prior to depositing material into the CIDMMA or Rehandling Basin. Please be advised that it is the permittee’s responsibility to ensure that the Corps receives the appropriate payments. Contact our Operations Support Section at (757) 201-7642 or (757) 201-7017 or the Craney Island Project Office at

(757) 484-1021 to obtain current conditions and toll rates at CIDMMA.

e. The permittee is hereby advised that the prime contractor performing the dredging project must obtain a Real Estate license from the Norfolk District Real Estate Office prior to the commencement of any work which would utilize the Craney Island Dredged Material Management Area or Government Bulkhead Facilities at the Craney Island Rehandling Basin. The permittee/prime contractor should contact the Norfolk District Real Estate Acquisition, Management, and Disposal Section at (757) 201-7730 for further information regarding the Department of the Army License.

9. Within 30 days of completion of the dredging, an after-dredge hydrographic survey, prepared by a state-certified engineer or surveyor, must be provided to

3 Refer to H.D. 563, 79th Congress, 2nd Session, P.L. 79-525

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the Corps. The hydrographic survey should reference a local tidal or geodetic datum.

10.Barges and scows used to transport dredged material may be filled only to a point where no overflow occurs. No overflow pipes are allowed.

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 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.

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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).

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

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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.

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

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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.

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

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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, 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

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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.htm l.

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 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

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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 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, 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.

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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 a 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, 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

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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.”

(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.

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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);

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. The permittee may ask the Corps to delineate the special aquatic sites and other waters of the U.S., but there may be a delay if the Corps does the delineation.

If compensatory mitigation is required, the prospective permittee must submit a statement describing how any required compensatory mitigation will be provided. As an alternative, the prospective permittee may submit

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a conceptual or detailed mitigation plan. In accordance with 33 CFR 332.3

(a) the Corps will consider what is environmentally preferable. Factors considered will be likelihood of success, sustainability, location relative to the impact site and significance within the watershed, and the costs of the compensatory mitigation project. The Corps will require the most appropriate and practicable mitigation pursuant to 33 CFR 320.4(r).

A JPA may be obtained by writing to the U.S. Army Corps of Engineers, Norfolk District, Regulatory Branch, 803 Front Street, Norfolk, Virginia 23510-1011; by telephoning the Norfolk District Regulator of the Day at (757) 201-7652 or via the following link to the Norfolk District Regulatory Branch website:

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

The Corps must determine if the PCN is complete. If the PCN is determined to be incomplete, the Corps will request the prospective permittee to provide the additional information necessary to make the request complete. The request must specify the information needed to make the PCN complete. As a general rule, the Corps will request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the Corps will notify the prospective permittee that the PCN is still incomplete and the review process will not commence until all of the requested information has been received by the Corps. The prospective permittee shall not begin the activity until he or she is notified in writing by the Corps that the activity may proceed under the RP, subject to any additional conditions imposed by the Corps.

If, after reviewing the request, the Corps determines that the proposed activity would have more than minimal individual or cumulative adverse impacts on the aquatic environment or otherwise may be contrary to the public interest, then the Corps will notify the project proponent that the activity is not authorized by the regional permit and will provide instructions for seeking authorization under an Individual Permit. The Corps may revoke this Regional Permit for an individual activity by following the procedures set forth in 33 CFR 325.7.

34.Environmental Justice: Activities authorized under this RP must comply with Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”.

35. Inspections: The permittee must provide a copy of this permit and any verification letter to the contractor(s) and made available at the project site to any regulatory representative. The permittee shall allow the Corps to make periodic inspections at any time deemed necessary in order to assure that the activities being performed under authority of this permit are in accordance with the terms and conditions prescribed herein. The Corps reserves the right to require post-construction engineering drawings and/or surveys of any work authorized under this RP, as deemed necessary on a case-by-case basis.

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VII. DISTRICT ENGINEER’S DECISION:

1. In reviewing the PCN for the proposed…