U.S. Army Corps In Reply to Application Number
of Engineers NAB-2022-61119-M49 (MD DNR/Elk Neck State Park -
PN-23-13 Comment Period: March 16, 2023 to April 15, 2023
THE PURPOSE OF THIS PUBLIC NOTICE IS TO INFORM INTERESTED PARTIES OF THE PROPOSED ACTIVITY AND TO SOLICIT COMMENTS. NO DECISION HAS BEEN MADE AS TO WHETHER OR NOT A PERMIT WILL BE ISSUED AT THIS TIME.
This District has received an application for a Department of the Army permit pursuant to Section 404 of the Clean Water Act (33 USC 1344), as described below:
Maryland Department of Natural Resources
c/o Mr. Lester Wright
580 Taylor Ave, D-3
Annapolis, Maryland 21401
WATERWAY AND LOCATION OF THE PROPOSED WORK:
The breakwater structures are proposed in the Elk River at the Rogues Harbor Boat Launch Facility at 209 Rogues Harbor Rd in North East, Cecil County, Maryland (39.46459, -75.98562).
OVERALL PROJECT PURPOSE:
The purpose of the project is to protect the Rogues Harbor boat launch infrastructure at 209 Rogues Harbor Road, North East, Maryland, from floating debris and ice, to improve safety for boaters during launching and loading activities from frequent wakes created by passing freight vessels, and to provide safe harbor refuge for boaters during sudden storm events.
Maryland DNR proposes to construct timber wavescreen breakwater structures in the Elk River on either side of the Rogues Harbor boat ramp, as shown on the attached plans. The proposed work includes construction of a 295 linear foot long timber wavescreen on the north side of the boat ramp and a 302 linear foot timber wavescreen on the south side, with a 60-foot-wide opening to the main channel of the Elk River between the two structures. The wavescreen structures will be approximately 4 feet wide and will consist of a central layer of timber sheeting supported by timber wales and 12” diameter timber pilings. The pilings will be affixed with batter blocks and 12” timber batter piles angled outward a 4:1 slope. Stone protection with an average bottom width of 15 ft will be placed along the outside edge of the northern wavescreen to help deflect detritus and wave energy. Warning signs will be attached to timber piles to alert boaters of the structures. The project will be constructed by barge with a turbidity curtain used where operationally feasible. The structures will extend a maximum distance of 283 feet channelward of the approximate mean high-water shoreline of the Elk River at an existing bulkhead. The structures are proposed in a section of the Elk River containing submerged aquatic vegetation (SAV).
The wavescreen structures and stone protection will permanently impact 4,386 square feet of the Elk River and SAV.
EFFECTS ON AQUATIC RESOURCES:
Tidal waters Impact (lf)
Tidal waters Impact (Sq. Ft.)
SAV impact (Sq. ft)
Permanent impacts associated with wavescreens and stone protection
Section 10 & 404
LEAD FEDERAL AGENCY:
The United States Army Corps of Engineers, as the lead federal agency, is responsible for all coordination pursuant to applicable federal authorities.
APPLICANT’S PROPOSED AVOIDANCE, MINIMIZATION, AND COMPENSATORY MITIGATION:
Avoidance and minimization:
As part of the planning process for the Rogues Harbor breakwater 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. In order to improve safety for boaters, the project is seeking to minimize hazards from both up- and downriver. Large quantities of debris and ice flow down the Elk River from the north, creating a safety hazard for boaters and preventing use of the boat ramp until the debris can be removed. Additionally, large freight vessels traveling up the Elk River from the south to the Chesapeake & Delaware Canal generate a significant wave-wake.
The applicant initially evaluated the feasibility of constructing stone breakwater structures on either side of the boat ramp. Breakwaters were determined to meet project goals, but the amount of stone required would result in substantial SAV impacts and higher construction costs. A combination of timber wavescreens and stone reinforcement was selected as the preferred alternative as the reduced structure footprint will minimize SAV impacts. Additionally, stone protection is only proposed along the northern wavescreen structure due to increased wave energy generated by the longer 5-mile fetch as well as the predominately downstream flow of floating debris and ice. A standalone timber wavescreen to the south of the boat ramp was determined to be sufficient to reduce wave-wake from vessels traveling upstream on the Elk River. The project will be constructed outside of the SAV growing season. Additionally, the project will utilize a turbidity curtain during construction to minimize suspended sediments generated from pile driving and stone placement.
Compensatory mitigation for unavoidable impacts to SAV associated with this project is proposed to be satisfied through out-of-kind permittee responsible mitigation. The project proposes to provide mitigation for 4,386 square feet of SAV impacts at an approximately 6:1 ratio by enhancing 26,500 feet of tidal wetlands located approximately 0.3 miles from boat ramp area. The mitigation project proposes to eradicate dense stands of Phragmites from the wetland and plant a native marsh grasses and shrubs.
CORPS EVALUATION REQUIREMENTS:
This project will be evaluated pursuant to Corps Regulatory Program Regulations (33 CFR Parts 320-332). The decision whether to issue a permit will be based on an evaluation of the probable impacts, 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 reasonable 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, economic, 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, mineral needs, and consideration of property ownership and in general, the needs and welfare of the people. The evaluation of the impact of this project will also include application of the Clean Water Act Section 404(b)(1) Guidelines promulgated by the Administrator, United States Environmental Protection Agency.
A preliminary review of this application indicates that the proposed work is not likely to adversely affect federally listed rare, threatened, or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended. As the evaluation of this application continues, additional information may become available which could modify this preliminary determination.
ESSENTIAL FISH HABITAT:
The Magnuson-Stevens Fishery Conservation and Management Act, 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 on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH), including species of concern, life cycle habitat, or Habitat Areas of Particular Concern. The Baltimore District has made a preliminary determination that the project will not have a substantial adverse effect on EFH. The Baltimore District has made a preliminary determination that mitigative measures are required to minimize adverse effects on EFH at this time. This determination may be modified if additional information indicates otherwise.
Pursuant to Section 106 of the National Historic Preservation Act of 1966 and applicable guidance, the Corps has reviewed the latest published version of the National Register of Historic Places and initially determined that no registered properties listed as eligible for inclusion, therein, are located at the site of the proposed work. The Corps has made the preliminary determination that the proposed project would have no adverse effect on historic properties. The Corps final eligibility and effect determination will be based on coordination with the State Historic Preservation Office as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps’ identified permit area.
Section 106 of the National Historic Preservation Act also requires federal agencies to consult with federally recognized American Indian tribes that attach religious and cultural significance to historic properties that may be affected by the agency’s undertaking. Corps Tribal Consultation Policy mandates an open, timely, meaningful, collaborative, and effective deliberative communication process that emphasizes trust, respect, and shared responsibility. The policy further emphasizes that, to the extent practicable and permitted by law, consultation works toward mutual consensus and begins at the earliest planning stages, before decisions are made and actions taken. The Corps final eligibility and effect determination will be based on coordination with interested tribes, in accordance with the Corps current tribal standard operating procedures as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on tribal resources.
MODIFICATION OF CIVIL WORKS PROJECTS: 33 USC 408 (SECTION 408):
All Section 408 proposals will be coordinated internally at USACE. The Section 408 decision will be issued along with the Section 404 and/or Section 10 decision. Please see the following link for more information regarding Section 408: https://www.nab.usace.army.mil/section408/.
WATER QUALITY CERTIFICATION:
The applicant is required to obtain a water quality certification in accordance with Section 401 of the Clean Water Act.
COASTAL ZONE MANAGEMENT PROGRAMS:
Where applicable, 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 Program. By this public notice, we are requesting the state concurrence or objection to the applicant’s consistency statement. The applicant must obtain any state or local government permits which may be required.
SUBMISSION OF COMMENTS:
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 provided will become part of the public record for this action and are subject to release to the public through the Freedom of Information 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 United States Army Corps of Engineers, Baltimore District within the comment period specified above through postal mail at the address below or electronic submission to the project manager email address below. Written comments should reference the Application Number NAB-2021-61204-M49.
PUBLIC HEARING REQUESTS:
Any person who has an interest which may be adversely affected by the issuance of this permit may request a public hearing. The request, which must be in writing, must be received within the comment period as specified above to receive consideration. Also, it must clearly set forth the interest which may be adversely affected by this activity and the manner in which the interest may be adversely affected. The public hearing request may be submitted by electronic mail or mailed to the following address:
U.S. Army Corps of Engineers, Baltimore District
2 Hopkins Plaza
Baltimore, Maryland 21201
It is requested that you communicate this information concerning the proposed work to any persons known by you to be interested, who did not receive a copy of this notice.
General information regarding the Corps’ permitting process can be found on our website at https://www.nab.usace.army.mil/Missions/Regulatory.aspx. This public notice has been prepared in accordance with Corps implementing regulations at 33 CFR 325.3. If you have any questions concerning this specific project or would like to request a paper copy of this public notice, please contact Matt Hynson at Matthew.Hynson@usace.army.mil or (410) 689-9532. This public notice is issued by the Chief, Regulatory Branch.