Published Aug. 27, 2018
Expiration date: 9/24/2018

                                      Public Notice

U.S. Army Corps                 In Reply to Application Number
of Engineers                        CENAB-OPR-M (MDTA/NICE BRIDGE REPLACEMENT)
Baltimore District               2018-60174

 PN 18-53                               Comment Period: August 24, 2018 - September 24, 2018 

 The Baltimore District has received an application for a Department of the Army permit pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act (33 U.S.C. 1344), as described below:

APPLICANT:       Mr. William N. Pines
                             Maryland Transportation Authority
                             Division of Engineering and Construction
                             8019 Corporate Drive, Suite F
                             Nottingham, Maryland 21236

 WATERWAY AND LOCATION:  In the Potomac River at the Governor Harry W. Nice Bridge between King George County, Virginia and Charles County, Maryland.

 PROPOSED WORK AND PURPOSE:  The Maryland Transportation Authority (MTA) has applied for Department of the Army authorization to replace the Governor Harry W. Nice Bridge carrying US 301 over the Potomac River. The new bridge would be located north of the existing bridge and would consist of a four-lane, barrier-separated structure with four 12-foot lanes supported by new bridge foundations. The existing bridge would be demolished after the new bridge is constructed.

 The proposed bridge span and associated structures within tidal waters do not require DA authorization pursuant to Section 10 of the Rivers and Harbors Act of 1899 since the United States Coast Guard (USCG) regulates the construction and repair of bridges over navigable waters and the work is therefore subject to USCG jurisdiction.

 The lead federal agency is the Federal Highway Administration (FHWA). The lead federal agency is responsible for complying with the requirements of the National Environmental Policy Act (NEPA) including the supervision of the preparation the environmental analysis. A determination of No Finding of Significant Impact (FONSI) was completed in October 2012.  Currently FHWA is re-evaluating the project under NEPA due to changes to the bridge design that has occurred since the FONSI was completed.

The Corps regulated activities are described below.

 Bridge construction would include the following:

 Maryland: to permanently fill and grade approximately 4,339 square feet of non-tidal palustrine emergent wetlands for the roadway approach; to construct a temporary approximately 50-foot by approximately 350-foot pile supported construction access trestle temporarily impacting approximately 124 square feet of river bottom for the concrete or steel pilings; to dredge by mechanical method an approximately 81,224 square foot area of river bottom at varying depths below mean low water (MLW) for placement of the new bridge foundations resulting in approximately 43,056 cubic yards dredged materials; and to backfill the new bridge foundations with approximately 30,679 cubic yards of previously dredged material.

 Virginia: to fill and grade approximately 874 square feet along 113 linear feet of stream channel, 7,931 square feet of palustrine emergent non-tidal wetlands, 2,623 square feet of palustrine scrub-shrub non-tidal wetlands, 2,546 square feet of intertidal estuarine scrub-shrub wetland, and 7,208 square feet of palustrine forested non-tidal wetlands to construct the roadway approaches.

 The bridge contract is proposed to be secured using a Design-Build procurement method to incentivize the contractor to reduce project costs; therefore, the means and methods to be used by the successful bidder for the construction access on the Virginia side has not been determined.

 The options being considered for construction access from the Virginia shoreline include the following:

    1. To construct an up to 86-foot wide (at the bottom) by an up to 3,600-long fill, including stone, temporary access causeway impacting approximately 309,600 square feet, 7.1 acres, of open water bottom.

        a.If a causeway is placed for construction access, approximately 125,067 cubic yards of fill materials would be removed and transported to an approved upland disposal site and the river bottom returned to pre-construction contours.

    2.  To construct an up to 50-foot wide by an up to 3,600-foot long pile supported temporary construction access trestle temporarily impacting approximately 1,440 square feet of river bottom.

        a.  All construction access pilings and any temporary foundations of the trestles would be removed to two feet below the mudline and the river bottom would be returned pre-construction contours. 

        b. To dredge by mechanical method an up to 147-foot wide by up to 3,600-foot long access channel to -12.0 feet MLW resulting in approximately 120,000 cubic yards of dredged material, within an approximate 12.2-acre area, to be transported to an approved upland disposal site.

         c. The construction access channel would be backfilled with approximately 18,500 cubic yards to restore the pre-construction river bottom contours in shallow water habitat areas (defined as areas less than 3 feet deep). The remainder of the access channel would be allowed to fill in through natural processes.

         d. The means of transporting the dredged material would depend upon the design-build contractor means and methods, which could be, but is not limited to, through barge or loading into a truck mounted on a barge. The dredged material would be tested prior to being legally disposed of in an approved uplands disposal site. The dredged material would not be re-used to backfill the excavated area for construction access.

Bridge removal would include the following:

Upon completion of construction of the new bridge, the existing bridge would be demolished. The in-water foundations would be cut to at least two feet below the mudline. Approximately 30,000 cubic yards of rubble/concrete (including the concrete decking from the superstructure) and 2,500 cubic yards of stone scour protection would be transported to an approved upland disposal site or re-purposed for other uses. The removal of the existing bridge foundations would restore approximately 23,958 square feet (0.55 acres) of open water habitat.


 Compensatory Mitigation

 Impacts to tidal and non-tidal wetlands in Virginia would be mitigated by the purchase of wetland credits from an approved Wetland Mitigation Bank, that could include but not be limited to, Hull Springs Farm Mitigation Bank in northeastern Westmoreland County, Virginia and the Buena Vista Mitigation Bank located in King George County, Virginia and the Crow’s Nest In-Lieu Fee Site located Stafford County, Virginia, which are in the Lower Potomac River watershed. No compensatory mitigation is required for the approximately 4,339 square feet of non-tidal wetland impact in Maryland because it is below the threshold for mitigation required by Maryland Department of the Environment (MDE).  MDE required compensatory mitigation for the proposed temporary dredging impacts to include enhancement of existing artificial reef utilizing existing bridge material and/or funding oyster restoration.

 All work is to be completed in accordance with the attached plans dated December 2017. If you have any questions concerning this matter, please contact Mr. Steven Harman at (410) 962-6082 or

 The purpose of the project is to provide a crossing of the Potomac River that is geometrically compatible with the US 301 approach roadways; provide sufficient capacity to carry vehicular traffic on US 301 across the Potomac River in the design year 2030; improve traffic safety on US 301 at the approaches to the Potomac River crossing and the bridge itself; and to provide the ability to maintain two-way traffic flow along US 301 during wide-load crossings, incidents, poor weather conditions, and when performing bridge maintenance and rehabilitation work.

 As part of the planning process for the proposed project, steps were taken to ensure avoidance and minimization of impacts to aquatic resources to the maximum extent practicable based on the existing site conditions and previously authorized work for past bridge repairs that included utilization of a causeway. Since issuance of the Finding of No Significant Impact (FONSI) in 2012, avoidance and minimization of impacts has occurred mainly through revision of the typical roadway section from 99-feet wide to 71-feet wide as well as reconfiguration of the roadway approaches.  In certain areas (i.e., south of the existing bridge and north of the Morgantown Power Generation Plant), the limit of disturbance has been revised to avoid impacts to wetlands.

In Virginia, the roadway approaches have been realigned to avoid impact to the Dahlgren Heritage Museum, which also decreases impacts to nontidal wetlands, waters of the US; Section 4(f) resources (related to the use of publicly owned parks, recreational areas, wildlife and waterfowl refuges, or historic site); and Section 6(f) of the Land and Water Conservation Fund Act (LCWF) resources (related to conversion of LCWF lands to uses other than public outdoor recreation). Consistent with commitments made in the 2012 FONSI, refinement of construction access methodology has reduced the projected 65 acres of dredging impact down to 12.2 acres. In addition, alternative means of construction access have been identified to further minimize the need for dredging for construction access. Alternative construction access options have been developed since the 2012 FONSI.

Mechanisms have been developed by the applicant that would be incorporated into contract documents to ensure avoidance and minimization of impacts continue to be considered and implemented after issuance of permit authorizations. MDTA’s primary approach to avoidance and minimization is to require the Design-Builder to mitigate for actual impacts based on the final design. The Design-Builder would have a requirement to demonstrate and document avoidance and minimizations resulting from this mitigation approach, which introduces an economic incentive to avoid and minimize impacts into the project after award and prior to initiation of construction activities. The proposed mitigation approach provides economic incentive for the contractor to avoid and minimize impacts, resulting in reduced compensatory mitigation requirements and reduced project costs.

 The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, and, in general, the needs and welfare of the people.

The evaluation of the impacts of the work described above on the public interest will include application of the Clean Water Act 404(b)(1) Guidelines promulgated by the Administrator, U.S. Environmental Protection Agency, under authority of Section 404 of the Clean Water Act.

The Corps of Engineers is soliciting comments from the public; Federal, State, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above.  Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

Written comments concerning the work described above related to the factors listed above or other pertinent factors must be received by the District Engineer, U.S. Army Corps of Engineers, Baltimore District, [Attn: Mr. Steven Harman, CENAB-OPR-M], 2 Hopkins Plaza, Baltimore, Maryland 21201 or, within the comment period specified above.  The United States Coast Guard, Bridge Section can be contacted at Commander (Resident Engineer United States Coast Guard Commander (dpw), 431 Crawford Street, Federal Building, 1st Floor, Portsmouth, VA. 23704-5504, Email address:, Fax Number: (757) 398-6334) regarding USCG review of the proposed project.

 ESSENTIAL FISH HABITAT:  The FHWA is the lead Federal agency for coordination of impacts to essential fish habitat. The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), as amended by the Sustainable Fisheries Act of 1996 (Public Law 04-267), requires all Federal agencies to consult with the National Marine Fisheries Service (NMFS) on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH).  The Essential Fish Habitat Assessment has been completed and is currently under review by NOAA-NMFS. The assessment states that the project would not likely result in substantial short-term or long-term adverse effect to EFH and managed species; mitigation measures, including time of year restrictions for in-water construction activities, would be implemented to minimize those effects. Coordination with the NMFS would continue during the additional phases of design of the project. No additional mitigative measures are recommended to minimize adverse effects on EFH at this time. This determination may be modified if additional information indicates otherwise and would change the preliminary determination.

 ENDANGERED SPECIES ACT:  The FHWA is the lead federal agency for coordination of impacts to endangered species.  A preliminary review of this application indicates that the proposed work may affect, but is not likely to adversely affect, Federally-listed threatened or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act (ESA), as amended.

 A Biological Assessment (BA) has been completed and is currently under review by _National Oceanic and Atmospheric Aministration –National Marine Fisheries Service (NOAA-NMFS). The BA concluded that the project may affect but is not likely to adversely affect these species, the Atlantic sturgeon (Acipenser oxyrinchus) and the shortnose sturgeon (Acipenser brevirostrum), or designated critical habitat for the Atlantic sturgeon within the action area.

 Streamlined consultation is being performed by FHWA with US Fish and Wildlife Service (USFWS) under Programmatic Biological Opinion for the Final 4(d) Rule for the northern long-eared bat (Myotis septentrionalis). Mid-portions of the Potomac River provide foraging and roosting habitat for the Bald Eagle (Haliaeetus leucocephalus). Because the project does not involve substantial tree clearing, the USFWS has determined that it would not adversely impact the quality of potential roosting habitat.  However, since activities involving the demolition of the old bridge and construction of the new bridge may produce noise loud enough to be perceived by roosting eagles if performed between May 15-August 15 or December 15-March 15, the USFWS recommends the project implement a time-of-day restriction of two hours before sunset to one hour after sunrise on blasting or comparably loud activities within 0.5 miles of the Potomac River’s western shoreline. In addition, should a nest be discovered with 0.5 miles conservation measures associated with the construction activities will be implemented during the proposed action to avoid and minimize effects of the project on ESA protected resources.

 As the evaluation of this application continues, additional information may become available which could modify this preliminary determination.

 NATIONAL HISTORIC PRESERVATION ACT:  The FHWA is the lead Federal agency for coordination of impacts to historic resources under Section 106 of the National Historic Preservation Act. The applicant coordinated with the Virginia Department of Historic Resources, the Maryland Historical Trust and the Advisory Council on Historic Preservation and entered into a Programmatic Agreement (PA) in 2011 to allow for the phased final identification, evaluation, and determination of effects on terrestrial and underwater archeological resources pending the completion and results of ongoing archeological identification and evaluation studies. The PA identified four properties in Maryland and one in Virginia that are eligible for listing on the National Register of Historic Places. Currently unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished under the requested permit.

 The evaluation of the impact of the work described above on the public interest will include application of the guidelines promulgated by the Administrator, U.S. Environmental Protection Agency, under authority of Section 404 of the Clean Water Act. Any person who has an interest, which may be adversely affected by the issuance of this permit, may request a public hearing. The District Engineer must receive the request, which must be in writing, to the U.S. Army Corps of Engineers, Baltimore District, 2 Hopkins Plaza, Baltimore, Maryland 21201, within the comment period as specified as above to receive consideration. Also, it must clearly state the interest that may be adversely affected by this activity and the manner in which the interest may be adversely affected.

 The applicant is required to obtain a water quality certification in accordance with Section 401 of the Clean Water Act from the Maryland Department of the Environment and the Virginia Department of Environmental Quality. Any written comments concerning the work described above which relate to water quality certification must be received by the Wetlands and Waterways Program, Maryland Department of the Environment, 1800 Washington Blvd., Suite 430, Baltimore, Maryland 21230 and/or Virginia Department of Environmental Quality, P.O. Box 1105, Richmond, Virginia  23218, within the comment period as specified above to receive consideration.  The 401 certifying agencies have a statutory limit of one year to make its decision.

 The applicant has certified in this application that the proposed activity complies with and will be conducted in a manner consistent with the approved Coastal Zone Management (CZM) Program of Maryland and Virginia. By this public notice, we are requesting the State concurrence or objection to the applicant’s consistency statement. It should be noted that the CZM Programs have a statutory limit of 6 months to make their consistency determinations.

The applicant must obtain any State or local government permits which may be required.

 It is requested that you communicate the foregoing information concerning the proposed work to any persons known by you to be interested and not being known to this office, who did not receive a copy of this notice.



                                                                                     Kathy B. Anderson
                                                                                    Chief, Maryland Section Southern