U.S. Army Corps In Reply to Application Number
of Engineers CENAB-OPR-M (Town of Ocean City-Kelly’s Reef) 2015-60861
PN 15-82 Comment Period: November 6, 2015 to December 6, 2015
THE PURPOSE OF THIS PUBLIC NOTICE IS TO SOLICIT COMMENTS FROM THE PUBLIC ABOUT THE WORK DESCRIBED BELOW. AT THIS TIME, NO DECISION HAS BEEN MADE AS TO WHETHER OR NOT A PERMIT WILL BE ISSUED.
The Baltimore District has received an application for a Department of the Army (DA) 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: Town of Ocean City
c/o Ms. Gail P. Blazer
P.O. Box 158
Ocean City, Maryland 21842
LOCATION: In the Atlantic Ocean near Ocean City, Worcester County Maryland.
WORK: The applicant proposes to continue construction of a 3,046-foot wide by 6,085-foot long (approximately 453 acres) artificial reef located approximately 1.6 nautical miles from the shoreline in Ocean City, Worcester County, Maryland by placing suitable materials throughout the entire project area. The project would include the placement of a variety of materials including vessels cleaned to meet Clean Water Act and Toxic Substance Control Act standards; Reef-EX combat vehicles; steel, concrete, in various forms, designed fabricated reef structures, rock, and other suitable material consistent with the “Guidelines for Marine Artificial Reef Materials” Second Edition, January 2004 (http://myfwc.com/media/131591/ArtificialReefMaterialsGuidelines.pdf) and the “Artificial Reef Management Plan for Maryland,” June 2007 (http://dnr2.maryland.gov/fisheries/Documents/Maryland_Artificial_Reef_Plan62607.pdf). Placed material would extend varying heights above the bottom substrate depending on the size of the material and the placement location. A minimum vertical clearance of -20 feet at mean low water level would be maintained throughout the project area. The project area coordinates are identified below:
38° 17’ 10.98” N
75° 4’ 29.76” W
38° 16’ 53.28” N
75° 3’ 68.62” W
38° 16’ 1.14” N
75° 4’ 37.01” W
38° 16’ 18.84” N
75° 5’ 7.98” W
The project was previously approved under DA permit CENAB-OP-RMS 2002-62089 (Town of Ocean City/Kelly’s Reef) issued on February 23, 2005. The project has been ongoing since 2005 and approximately 6.4 acres of artificial reef spaced throughout the reef area have been constructed to date.
The purpose of the project is to improve and maintain aquatic fish habitat within the Atlantic Ocean in the vicinity of Ocean City, Maryland.
As part of the planning process for the proposed project, steps were taken to ensure avoidance and minimization of impacts to waters of the United States to the maximum extent practicable by inspecting abandoned vessels or vehicles utilized in reef construction to ensure all materials comply with Clean Water Act requirements. The Project has been and would continue to be constructed in accordance with the National Artificial Reef Plan developed pursuant to Section 204 of the National Fishery Enhancement Act of 1984 and would result in a net increase of artificial reef habitat in the Atlantic Ocean. Upon development and build-out of the reef sites, it is expected that the proposed undertakings would provide for enhance fisheries and fish habitat. The proposed projects would result in the deposition of various materials within the Atlantic Ocean in depths ranging from -31 to -55 feet at MLW. These deeper waters do not support SAV. Compensatory mitigation is not being proposed by the applicant for permanent impacts to open tidal waters as the project is proposed to enhance the existing aquatic environment.
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 project site lies in or adjacent to EFH as described under MSFCMA for Pleuronectes americanus (winter flounder), Scopthalmus aquosos (windowpane flounder), Pomatomus saltatrix (blue fish), Stenotomus chrysops (scup), Centropristus striata (black sea bass), and Paralicthys dentatus (summer flounder) juvenile and adult; Urophycis chuss (red hake) eggs, larvae, and juvenile; Peprilus triacanthus (Atlantic butterfish) and Sphyrna lewini (scalloped hammerhead shark) juvenile; Clupea harengus (Atlantic sea herring) and Prionance glauca (blue shark) adult; Odontaspis taurus (sand tiger shark) larvae and adult; Squatina dumerili (Atlantic angel shark) and Charcharinus plumbeus (sandbar shark) larvae, juvenile, and adult; Charcharinus obscurus (dusky shark) and Galeocerdo cuvieri (tiger shark) larvae; and eggs, larvae, juvenile, and adult stages of Scomberomorus cavalla (king mackerel), Scomberomorus maculatus (spanish mackerel), and Rachycentron canadum (cobia); all managed species under the MSFCMA.
The project has the potential to adversely affect EFH or the species of concern by alteration of spawning, nursery, forage and/or shelter habitat. The project may have an adverse effect on approximately 453 acres of EFH as described under the MSFCMA for the species and life stages identified above. This habitat consists of a mostly sandy substrate that does not support submerged aquatic vegetation (SAV) or hard clams (Mercenari mercenary) due to the depth of the ocean at the project location. The proposed project will alter the existing elevations within the project footprint. However, the District Engineer has made a preliminary determination that site-specific impacts would not be substantial and an abbreviated consultation will be conducted with NMFS. No 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.
The Baltimore District has made a preliminary determination that site-specific impacts would not be substantial and an abbreviated consultation will be conducted with NMFS. No mitigative measures are recommended at this time to minimize adverse effects on EFH. This preliminary determination may be modified if additional information indicates otherwise and could change the Corps’ preliminary determination.
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 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. 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, P.O. Box 1715, Baltimore, Maryland, 21203 within the comment period specified above.
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. 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 within the comment period as specified above to receive consideration. The 401 certifying agency has 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. 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 Program has a statutory limit of 6 months to make its consistency determination.
The applicant must obtain any State or local government permits which may be required.
A preliminary review of this application indicates that the proposed work may affect, but is not likely to adversely affect the following Federal listed threatened or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended: Loggerhead turtle (Caretta caretta), Kemp's Ridley turtle (Lepidochelys kempii), Leatherback turtle (Dermochelys coriacea), Green turtle(Chelonia mydas), Blue whale (Balaenoptera musculus), Fin Whale (Balaenoptera physalus), Humpback whale (Megaptera novaeangliae), North Atlantic Right Whale (Eubalaena glacialis), Sei Whale (Balaenoptera borealis), and Sperm whale (Physeter catadon). As the evaluation of this application continues, additional information may become available which could modify this preliminary determination.
Review of the latest published version of the National Register of Historic Places indicates that no registered properties listed as eligible for inclusion, therein, are located at the site of the proposed work. Currently unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished under the request permit.
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 by the District Engineer, U.S. Army Corps of Engineers, Baltimore District, P.O. Box 1715, 21203-1715, 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.
It is requested that you communicate this 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.
FOR THE DISTRICT ENGINEER:
KATHY B. ANDERSON
Chief, Maryland Section Southern