PN-23-49 NAB-2023-60934-M51 (Ort Farms, LLLP/Shoreline Stabilization)

                       Public Notice
U.S. Army Corps                In Reply to Application Number
of Engineers                        NAB-2023-60934-M51 (Ort Farms, LLLP/Shoreline
Baltimore District                  Stabilization)
PN-23-49                               Comment Period: December 13, 2023 to January 12, 2024    
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 10 of the Rivers and Harbors Act (33 USC 403) and Section 404 of the Clean Water Act (33 USC 1344), as described below:

APPLICANT:

Ort Farms LLLP
c/o Mr. Jose Suarez
P.O. Box 366218
Bonita Springs, Florida 34136

WATERWAY AND LOCATION OF THE PROPOSED WORK:

The proposed project is located in Trippe Creek, Tred Avon River, and Goldsborough Creek, located at 27129 Otwell Road in Oxford, Talbot County, Maryland (Project Latitude 38.698372, Longitude -76.136971).  

OVERALL PROJECT PURPOSE:

To control shoreline erosion, provide beach nourishment, and create and enhance marsh along the shoreline of Lots 1 & 2, Otwell Road, Oxford, Maryland.

PROJECT DESCRIPTION:

The applicant proposes to control shoreline erosion along approximately 3,370 linear feet (lf) of estuarine shoreline using a combination of living shoreline, marsh edging, beach nourishment, and revetment practices as follows:

Stone Revetment: to construct approximately 300 lf of 10 to 11-feet (ft) wide rip rap revetment; all extending a maximum of 11 ft channelward of the approximate mean high water (MHW) shoreline.

Marsh Edging: to construct approximately 230 lf of 14-ft wide vented marsh edging at a top elevation of 2.0 ft above MHW; to construct approximately 95 lf of 15-ft wide vented marsh edging with a top elevation of 2.0 ft above MHW; to construct approximately
375 lf of 8-ft wide vented marsh edging with a top elevation of +0.5 ft MHW; and to construct approximately 420 lf of 5-ft wide marsh edging constructed at the same elevation as the marsh platform, no higher than existing MHW elevation at the marsh-open-water interface; all to extend a maximum of 17 ft channelward of the approximate MHW shoreline.

Living Shorelines: to construct approximately 750 lf of 9-ft wide vented low-profile stone sill with a top elevation of 0.5 ft above MHW, backfilled with 464 cubic yards (cyds) of clean sand and planted with approximately 12,518 square feet (sf) of Spartina patens and S. alterniflora; to construct 295 lf of 10-ft wide vented stone sill with a top elevation of 0.5 above MHW, backfilled with 204 cyds of clean sand and planted with 5,506 sf of S. patens and S. alterniflora; to construct 750 lf of 8-ft wide vented stone sill with a top elevation of 0.5 above MHW, backfilled with 528 cyds of clean sand and planted with 14,262 sf of S. patens and S. alterniflora; all to extend a maximum of 25 ft channelward of the approximate MHW shoreline.

Beach nourishment: to construct approximately 155 lf of 14-ft wide stone sill for sand containment with a top elevation of 2.0 ft above MHW, backfilled with 38 cyds of clean sand; all to extend a maximum of 45 ft channelward of the approximate MHW shoreline.

Please refer to the tables below for a summary of aquatic resource impacts.

EFFECTS ON AQUATIC RESOURCES:

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:

The applicant has proposed approximately 62,101 sf (1.42 acres (ac)) impact area along 3,370 lf of estuarine shoreline to include 43,264 sf (0.99 ac) impact area of unvegetated shallows, 2,447 sf (0.06 ac) impact area of SAV as mapped by the Virginia Institute of Marine Science from 2018 to 2022, and 16,390 sf (0.38 ac) of temporary impacts to existing tidal marsh vegetation for enhancement activities.

The applicant proposes to create approximately 32,286 sf (0.74 ac) area of high and low marsh zones as part of the living shoreline construction, for a net increase of 15,896 sf (0.36 ac) of tidal fringe marsh. The applicant also proposes to enhance approximately 29,936 sf (0.69 ac) of existing marsh dominated by Phragmites australis by eradicating P. australis and replanting with S. alterniflora and other suitable native tidal marsh vegetation species.

The project as detailed above represents a reduction in impacts from the applicant’s initial July 18, 2023 submittal to the Corps. Impacts were reduced by approximately 58,537 sf (1.34 ac), primarily through eliminating plans to raise the elevation of existing marsh with sand fill and eliminating stone sill permanent impacts in marshy coves, or by proposing to use marsh toe edging instead of traditional living shoreline stabilization techniques resulting in a reduced channelward footprint. Sand fill was also eliminated from two (2) areas of marsh enhancement to maintain or increase the suitability of the site for survival of desired native marsh species.

Since the project is anticipated to result in a net increase of approximately 15,896 sf of marsh vegetation and proposes to impact a small area of submerged aquatic vegetation (2,447 sf) relative to the overall size of the project footprint, the Corps has preliminarily determined that the project represents a net increase in aquatic ecosystem function and is, therefore, not recommending compensatory mitigation to offset aquatic resource losses.

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.

ENDANGERED SPECIES:

A preliminary review of this application indicates that the proposed work 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, 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 (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 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 project site lies in or adjacent to EFH as described under MSFCMA for managed species under the MSFCMA. 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 not required to minimize adverse effects on EFH at this time. This determination may be modified if additional information indicates otherwise.

HISTORIC RESOURCES:

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  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.

TRIBAL RESOURCES:

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 the United States Army Corps of Engineers. 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/Missions/Regulatory/Section-408-Requests/.

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-2023-60934-M51.

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:

Ms. Megan Spindler
megan.l.spindler@usace.army.mil
U.S. Army Corps of Engineers, Baltimore District
Regulatory Branch
218 North Washington Street, Suite 304
Easton, Maryland 21601

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 Ms. Megan Spindler at megan.l.spindler@usace.army.mil. This public notice is issued by the Chief, Regulatory Branch.