DEPARTMENT OF THE ARMY
NORFOLK DISTRICT CORPS OF ENGINEERS
FORT NORFOLK 803 FRONT STREET
NORFOLK VIRGINIA 23510-1096
March 4, 2011
Eastern Virginia Regulatory Section
(08-4060-09) (Schenks Branch)
McIntire Road Extended
VOOT Project No. U000-104-V02, P101
VDHR/SHPO File No. 1993-2606
Ms. Charlene Vaughn
Assistant Director, Office of Federal Agency Programs
ATTN. Mr John Eddins, Ph.D., Program Analyst
The Advisory Council on Historic Preservation
Old Post Office Building
1100 Pennsylvania Avenue, NW, Suite 803
Washington, DC 20004
Ms. Kathleen S. Kilpatrick, Director
ATTN: Ms. Ethel Eaton, Ph.D., Senior Policy Analyst,
Division of Resource Services and Review
Virginia Department of Historic Resources
2801 Kensington Avenue
Richmond, VA 23221
Dear Ms. Vaughn and Ms. Kilpatrick:
The Norfolk District, United States Army Corps of Engineers (Norfolk District) is in receipt of comments your agencies provided in response to the second draft of a Section 106 Memorandum of Agreement (MOA) we distributed for review on October 21, 2010, for our undertaking associated with the Virginia Department of Transportation's (VDOT) McIntire Road Extended (MRE) project. The Norfolk District also received comments on the draft MOA from the following consulting parties to the Section 106 process: Mr. Richard Collins, Preservation Piedmont, the Charlottesville Regional Chamber of Commerce, North Downtown Residents Association, the Piedmont Group of the Sierra Club, the City of Charlottesville (City), and Sensible Transportation Alternatives to the Meadowcreek Parkway (STAMP). The Norfolk District has taken the comments of each of these parties into account and is providing the enclosed revised MOA (3rd Draft) for your consideration.
In our review of comments received in response to the October 2010 draft of the MOA (2nd Draft), the Norfolk District identified three major areas of concern. We have addressed these concerns in changes and substantive additions made to the text of the agreement document as discussed below:
1. In light of the City's earlier intention to sign the MOA as a concurring party, some concern was expressed about the legal enforceability of the City's commitment to design and implement the landscape plan described in Stipulation I.B of the MOA. The City has since accepted the Norfolk District's invitation to sign the MOA as a signatory party, and changes have been made in the 3rd Draft to reflect this change.
2. Concern was also expressed about an existing Rivanna Water and Sewer Authority (RWSA) sanitary sewer line and easement that runs through McIntire Park near Schenks Branch. There was concern about how potential upgrades to the sewer line might affect VDOT's landscape plan for its Stormwater Detention Basin No.3, described in Stipulation I.A, and the City's planned integrated landscape plan for the McIntire Road/McIntire Road Extended transportation corridor, described in Stipulation I.B.
As background to understanding this issue, we would like to reiterate that the section of sewer line that will be upgraded by VDOT under the MRE project extends from approximately Station 23+50.00 (roughly 1,300 feet north of Route 250 Bypass) on the project to roughly 150 feet south of Melbourne Road. The boundary of the proposed easement associated this segment is shown on an aerial photograph of McIntire Park in Figure 1, outlined in green. Also depicted in this illustration are the boundaries of VDOT's Basin No.3, outlined in yellow, and the boundaries of the historic properties Hard Bargain and Rock Hill, outlined, respectively, in pink and red. Close examination of this illustration will show that there are few existing trees, if any, lying between Hard Bargain and Rock Hill and the path of the MRE in the near vicinity of the two historic properties that will be removed by VDOT's construction of the highway, the detention basin, or the upgraded sewer line.
The sewer line that runs through McIntire Park is a gravity line; and flows from south (Route 250 Bypass) to north (Melbourne Road); and there are roughly 1,300 feet of line between Route 250 Bypass and the southern end of the section of line VDOT will upgrade as part of the MRE project. The line upgrade that VDOT will accomplish does not necessitate an upgrade to the remainder of the line within McIntire Park because the existing, shallower and narrower line at the south end of the park will still flow without encumbrance into the upgraded, deeper and wider pipe. That being said, the City, in conjunction with the RWSA, has recently developed a separate project to upgrade the remainder of the sewer line within McIntire Park (south of the section VDOT will upgrade) for the purpose of increasing capacity and replacing aged pipes.
The Norfolk District and VDOT have taken the City's planned sanitary sewer project into account in developing the 3rd Draft of the MOA for the MRE project. Stipulation I.B now acknowledges that the City's design for an integrated landscape plan for the McIntire Road/McIntire Road Extended corridor will need to accommodate RWSA planting requirements for its planned revised easement within McIntire Park. These requirements permit certain "sewer-safe" shrubs and understory trees within the outer 10 feet of RWSA's 40-foot easement and, thereby, will allow the City to design and implement a landscape plan which achieves the stated goal of integrating the MRE into the existing natural features of its setting.
The existing RWSA sewer line runs along the east side of VDOT's Stormwater Detention Basin No. 3. Under the City's planned upgrade project, the line will be moved to run along the west side of this basin. RWSA reviewed VDOT's existing landscape plans for Basin No.3 and noted that five trees along the west side presented a potential conflict with the planned upgraded line. Consequently, as recommended by RWSA, VDOT has revised its landscape plans for Basin No.3 to replace these five trees with species from RWSA's list of "sewer-safe" shrubs and understory trees. These revised plans have been incorporated into the 3rd Draft.
The revised agreement document also contains a new commitment, Stipulation I.C, related to the RWSA sanitary sewer line. If The City's planned sewer upgrade is constructed after VDOT and the City have installed the landscape plans described in Stipulations I.A and I.B, the City will replace in kind any plants previously installed in accordance with either of these landscape plans that are removed or damaged during implementation of the sewer upgrade.
3. The third major area concern the Norfolk District identified among the responses received to the 2nd Draft was the sufficiency of previously proposed mitigation for addressing the project's adverse effect on McIntire Municipal Park and McIntire Golf Course. One or more parties suggested that, in addition to the previously proposed mitigation, VDOT should participate in a rehabilitation of the Rock Hill Gardens or should build new golf holes within McIntire Park to replace those that will be removed by the MRE. Several of the consulting parties suggested that the VDOT should commit to implementing Traffic Demand Management (TMD) practices on the MRE (e.g., car-free days, privileged access for public transit, privileged access for bicyclists and pedestrians, or HOV/HOT lane options) as mitigation.
We have addressed each of these concepts in previous correspondence. In previous consultation with your agencies it has been determined that the MRE will have no adverse effect on the Rock Hill Gardens. Further, the City has already made a commitment regarding rehabilitation of Rock Hill in the separate MOA the Federal Highway Administration executed for the Route 250 Bypass Interchange project. In regard to reconstruction of golf holes, this or similar commitments affecting the future use of McIntire Park cannot be made outside of the City's mandatory parks master planning process, involving a larger group of stakeholders beyond those represented as Section 106 consulting parties for this project. Commitments that would place restrictions on the future use of the MRE cannot be imposed or enforced by the Norfolk District and are also best vetted before a larger constituency. There is no language in the MOA that would prevent Charlottesville City Council from imposing TDM restrictions on the MRE in the future if that idea finds broad support among City residents.
In order to address concerns about the sufficiency of the mitigation, all previous commitments to mitigation have been retained in the 3rd Draft of the MOA and new commitments to prepare or present two educational products - an exhibit module and a lecture series - have been added to the agreement document. These two new initiatives are described in detail in Stipulation IV of the 3rd Draft. As recommended earlier by the State Historic Preservation Officer (SHPO), the new mitigation we have added is of more obvious direct benefit to the general public than the historical documentation (Stipulation III) that VDOT will also prepare.
In addition to the substantive changes discussed above, the 3rd Draft of the MOA contains technical changes in Stipulations III.A.2 (review period) and VIII.A (human remains) requested by the SHPO. As suggested by the Advisory Council on Historic Preservation, we also have removed the former 14th "Whereas" clause that acknowledged VDOT's acquisition of replacement parkland, since agreements on this issue were made between VDOT and Charlottesville City Council outside of the Section 106 process and arose out of concern over the loss of green space and recreational use.
In response to additional comments received from consulting parties which have not been discussed above, we provide the following:
o Comments received from several consulting parties concerning "segmentation" and inadequate alternatives analysis appear to be directed at decisions made by the Federal Highway Administration (FHWA) in regard to the Route 250 Bypass Interchange project rather than the Norfolk District's present undertaking. Thus, it would not be appropriate for the Norfolk District to respond on these issues.
o STAMP cited the following "WHEREAS" clause;
- o "WHEREAS, the aforementioned Route 250 Interchange will also entail permanent impacts to nontidal waters of the United States and will require a Permit, and the Norfolk District cannot complete its review of VDOT's Permit application until and unless it receives and reviews either a Joint Permit Application for the Interchange as the terminus for the Project or a recognition in writing from the appropriate official in the City that the at-grade intersection with Rt 250 [Bypass] will be the terminus, if the above-grade terminus is not constructed."
Based upon this, STAMP cited our regulations (Section 3.a. of 33 CFR 325, Appendix C), and commented that it is "currently inappropriate to be considering approval of this proposed MOA in that there is no completed Permit application to which this MOA will apply." However, VDOT's application is a complete application for the project VDOT proposes to construct; and the MRE MOA contained herein will apply to VDOT's project alone. To clarify our requirement, since the Interchange will connect the MRE to the existing Route 250 Bypass, and since we were aware that the Interchange would entail impacts to waters regulated by the Norfolk District, we stated in our October 12, 2010 cover letter, "receipt of a permit application for the Interchange project from the City will allow the Norfolk District to recognize the Interchange as the southern terminus of the MRE and complete our review of VDOT's permit application". We have received the City's application for the Interchange and we are currently reviewing its impacts. But as you know, the Interchange has already been through the Section 106 process with the FHWA acting as the Lead Federal Agency. As a result, the Interchange has its own separate MOA.
o The North Downtown Residents Association called for including the Charlottesville and Albemarle County Courthouse Historic District within the Area of Potential Effects (APE) for the Norfolk District's undertaking. In fact, since our letter of March 27, 2009, to the SHPO, the Norfolk District has defined the APE to include portions of this historic property. We assessed the visual and auditory effects of the MRE on the district in that letter.
o Preservation Piedmont and Mr. Bluestone commented that project effects on Hard Bargain have not been adequately assessed. As you know, our agencies concurred on our effect determination early on in the Section 106 process. The Norfolk District has considered the additional comments provided on this issue, but continues find that Hard Bargain lies outside the APE for our undertaking.
o STAMP commented that there has been insufficient opportunity for the public to review and comment on the design of the MRE. In the documentation it provided to the ACHP on May 27, 2009, in accordance with 36 CFR 800.6(a)(l), the Norfolk District has described the extensive opportunities that the Norfolk District, VDOT, and Charlottesville City Council have provided for public comment on the project. Additionally, the 2nd Draft of the MOA was reviewed by City Council in regular session before the public on November 15, 2010. There is no requirement for a public hearing inherent to the Section 106 process.
The Norfolk District believes the terms of this 3rd Draft of the MOA adequately and effectively address the adverse effects of our undertaking on historic properties. We request that the ACHP, the SHPO, and the other consulting parties to the Section 106 process respond within 30 calendar days of receipt of this letter, with each party letting us know if it is willing to sign the attached MOA in its current form. If you are not willing to sign the MOA, please provide specific requests for changes that would allow you to sign the document. If no response is received within 30 calendar days, then we will assume that Consulting Parties have no further comments on the draft.
Thank you for your assistance. If you have any questions about this undertaking, please contact Kathy Perdue at 757-201-7218 or Kathy.S.Perdue@usace.army.mil.
William T. Walker
Chief, Regulatory Branch
cc: Mr. Marc Holma, Virginia SHPO
Ms. Angela Tucker, Development Services Department, City of Charlottesville
Mr. Michael Farruggio, Charlottesville Parks and Recreation Advisory Board
Mr. David Benish, Albemarle County
Mr. John A. Cruickshank, Piedmont Group of the Sierra Club
Mr. Daniel Bluestone, Preservation Piedmont
Mr. Peter Kleeman, STAMP
Ms. Colette Hall, North Downtown Residents Association
Mr. Richard Collins
Ms. Mary A. R. Howard, Thomas Jefferson Branch, APVA/Preservation Virginia
Mr. James Shisler, Dogwood Vietnam Memorial Committee...
Mr. Bob Hodous, Charlottesville Regional Chamber of Commerce
Ms. Mary Ellen N. Hodges, VDOT Central Office
Mr. Rick O. Crofford, VDOT Culpeper District
Mr. Gregory F. Krystyniak, VDOT Culpeper District
Mr. D. Brent Sprinkel, VDOT Culpeper District
Mr. Chris Egghart, Virginia Department of Environmental Quality
Figure 1. Aerial view of McIntire Municipal Park. VDOT MRE construction easement outlined in blue; easement for section of RWSA sewer line that VDOT will upgrade outlined in green;and location of Stormwater Detention Basin No. 3 outlined in yellow. (NOTE: The southern terminus of the MRE is being planned to connect to the City of Charlottesville's proposed Route 250 Bypass Interchange, the permit application for which is also being reviewed by the Norfolk District and is covered under separate MOA).