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  LRH 2014-0392-LKR
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LRH 2014-0392-LKR

Posted: 3/20/2017

Expiration date: 4/18/2017


TO WHOM IT MAY CONCERN: The District Engineer has received a prospectus to establish a wetland and stream compensatory mitigation bank, in the State of West Virginia (WV), under an existing umbrella mitigation banking instrument (UMBI), for Federal and State permits as described in this Public Notice.  Issuance of a public notice regarding proposed mitigation banks is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 332).  In addition, the proposed mitigation bank has been submitted for authorization under the provisions of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899.  This notice serves as the United States (U.S.) Army Corps of Engineers’ (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 Water Quality Certification for the following Application.  The Corps 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 this proposal. The purpose of this Public Notice is to inform you of the proposed mitigation bank and to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest.  We hope you will participate in this process.

 

INTERAGENCY REVIEW TEAM: As indicated in the Corps regulations (33 CFR 332.8(b)), the district engineer will establish an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee (ILF) programs.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or ILF programs through the development of mitigation banking or ILF program instruments.  The IRT reviews draft prospectuses, prospectuses, instruments, and other documents and provides comments to the Corps. The WV IRT consists of the following federal and state resource agencies: Corps Huntington and Pittsburgh Districts, U.S. Environmental Protection Agency (USEPA), U.S. Fish and Wildlife Service (USFWS), U.S. Department of Agriculture’s Natural Resource Conservation Service, WVDEP, and WV Division of Natural Resources.

 

 BANK SPONSOR:   WV Bunrootis, LLC (Bunrootis)

          400 South Record, Suite 1250

          Dallas, Texas  75202

      

 LOCATION: The proposed mitigation bank site is located on an approximately 227-acre parcel along Indian Creek and unnamed tributaries of Indian Creek, southeast of Harrisville, Ritchie County, West Virginia (latitude 39.1821, longitude -81.0068).  The mitigation bank site includes Indian Creek and unnamed tributaries to Indian Creek, Bearwallow Run, unnamed tributaries to Bearwallow Run, their adjacent floodplains and upland corridors, and palustrine emergent wetlands.  Indian Creek is a tributary to South Fork of the Hughes River.  The Hughes River is a direct tributary to the Little Kanawha River, a navigable water of the United States.  This proposal has been assigned Department of the Army (DA) file number LRH-2014-00392.

 

DESCRIPTION OF THE PROPOSED WORK: The Sponsor, Bunrootis, received approval for their UMBI on August 7, 2012 (LRH-2009-00150-LKR).  As defined in 33 CFR 332.8, an UMBI is a single mitigation banking instrument which provides for future authorization of additional mitigation bank sites.  As additional sites are selected, they must be reviewed and approved by the IRT as modifications to the existing mitigation banking instrument.  Therefore, the current proposal is being considered as a modification to Bunrootis’s UMBI.

Bunrootis has submitted a mitigation plan to the Huntington District Corps and the other members of the WV IRT to develop and operate a stream mitigation bank to be known as the Indian Creek (North) Mitigation Bank.  The purpose of the mitigation bank is to provide off-site compensatory mitigation for projects that result in unavoidable impacts (including the discharges of dredged or fill material) to streams and wetlands within the specified service area.  The proposed bank will involve the enhancement, restoration and preservation of streams and wetlands and their associated riparian buffers.

The Indian Creek Mitigation Bank would implement restoration measures and conserve the aquatic environment and upland buffer areas in an effort to provide ecological benefits, including improvements to water quality, fish and wildlife habitat, erosion control, and flood conveyance and storage within the watershed.  The primary Geographic Service Area (GSA) would be the Little Kanawha Watershed as defined by the 8-digit Hydrologic Unit Code (HUC) No. 05030203.  The Bank Sponsor has also proposed seven (7) secondary GSAs, which would be the Middle Ohio South Watershed (05030202), Lower Kanawha Watershed (05050008), the Elk Watershed (05050007), the West Fork Watershed (05020002), the Monongahela Watershed (05020003), the Tygart Valley Watershed (05020001), and the Middle Ohio North Watershed (005030201).

The goal of the Bank is to restore and preserve self-sustaining, functional stream corridors and wetlands to replace the functions and values lost due to unavoidable adverse impacts to streams and wetlands from past historic agricultural and silvicultural activities which include cattle, hay, and timber production.  The Bank is anticipated to include the channel of Indian Creek and unnamed tributaries to Indian Creek, Bearwallow Run, unnamed tributaries to Bearwallow Run, their adjacent floodplains and upland corridors, and palustrine emergent wetlands.  Some of the targeted functions include improvements to wildlife habitat, water quality, flood conveyance and storage, and erosion control through the implementation of natural channel design and the reestablishment of riparian buffers.  The Bank Sponsor proposes to meet the Bank’s goals through the restoration and preservation of contributing perennial, intermittent and ephemeral streams and wetlands as summarized below:

 

Restoration:  Restoration is proposed for 9,630 linear feet (lf) of stream channel and 3.10 acres of wetlands.  Restoration modifications may include, but are not limited to, natural channel design, channel cross section and pattern alterations, bank stabilization and bioengineering techniques, grade control and in-stream structures, the reconnection of contributing streams to the main channel, the establishment of forested riparian buffers, supplemental planting and removal of detrimental land use activities (i.e. livestock access/grazing) in appropriate riparian corridors.  The restoration of dimension, pattern and profile of these reaches is proposed to improve the overall channel condition, stabilize channel banks, and re-establish hydraulic connectivity to flood prone areas.

 

Establishment: The Bank Sponsor proposes to establish approximately 3,237 lf of streams and 0.61 acre of wetlands in areas impacted by past/current land use activities.  Establishment activities may include, but are not limited to, natural channel design techniques, channel cross section and pattern establishment, bank stabilization and bioengineering techniques, grade control and in-stream structures, the connection of contributing streams to the main channel, and the establishment of forested riparian buffers.

 

Preservation: The Bank Sponsor proposes to preserve approximately 11,441 lf of streams and 0.070 acre of wetlands, along with riparian buffers.

 

Upon approval of the proposed mitigation bank under the UMBI, the Bank Sponsor would encumber the proposed mitigation banks’ acreage with a perpetual environmental covenant (along with an appropriate monitoring and enforcement endowment) held by a qualified conservation organization (e.g. land trust). Once all credits generated have been released by the WV IRT, the lease areas would be maintained under an environmental covenant to which the Bank Sponsor and the landowner would be signatory. A designated third party manager would be responsible for long-term maintenance after bank closure. The third party financial assurance designee would be identified in the final mitigation banking instrument. Revenues generated by the sale of mitigation credits would allow the Bank Sponsor to establish a long-term monitoring and maintenance fund for the mitigation banks to provide for the long-term quality and viability of the restored ecosystems.

 

Figure 1 of 3 shows the location of the proposed mitigation bank, Figure 2 of 3 shows the proposed service area for the proposed mitigation bank, and Figure 3 of 3 shows the proposed resource development of proposed mitigation bank.  

 

In accordance with the Rule, performance standards and success criteria, established by the application of conditional assessments and/or suitable metrics, would be outlined and implemented as requirements.  The full Mitigation Plan is available for review upon request.

 

Authorization of the proposed mitigation bank will be evaluated under the Nationwide Permit No. 27 described in the January 6, 2017 Federal Register, Issuance and Reissuance of Nationwide Permits (82 FR 1860).

 

WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification from the WVDEP would be required for the proposed mitigation bank.

 

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.  The NRHP has been consulted and it has been determined there are no historic properties currently listed on the National Register within the area to be affected by the project.  On May 5, 2014, the Bank Sponsor submitted a request for clearance to the West Virginia Division of Culture and History, the State Historic Preservation Office, (SHPO) for the proposed mitigation bank. Through a letter (FR# 14-690-RT) dated June 6, 2014, the SHPO requested a Phase I archaeological survey be conducted. Section 106 coordination is on-going and will continue upon receipt of the Phase I survey.  Comments concerning archaeological sensitivity of the project area should be based on collected data.

 

THREATENED & ENDANGERED SPECIES: This Public Notice will serve as coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended).  Two (2) federally listed endangered species, the Indiana bat (Myotis sodalis) and eastern cougar (Felis concolor cougar), and one (1) federally threatened species, the northern long-eared bat (Myotis septentrionalis) may occur within the proposed project area.

 

The project would involve stream and wetland restoration and preservation work performed within forested areas as well as the restoration and protection of stream-side riparian corridors.  No known Indiana bat or northern long-eared bat hibernacula exists within the work areas.  The project would involve the removal of approximately 15.8 acres of timber. The Corps has consulted the most recently available information and has determined the proposed project may affect (in a positive aspect), but would not likely adversely affect either the Indiana bat or the northern long-eared bat.

No critical habitat for the eastern cougar has been identified within the state of WV.  Any stream and wetland restoration activities would not be expected to disrupt or alter the habitat or mobility of the eastern cougar.  Therefore, this office has determined the proposed project would have no effect on the eastern cougar. 

This Public Notice serves as a request to the USFWS for any additional information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).

 

PUBLIC INTEREST REVIEW AND COMMENT: Any person who has an interest that may be adversely affected by the approval of this proposed mitigation bank may request a public hearing. The request must be submitted in writing to the district engineer on or before the expiration date of this notice and must clearly set forth the interest which may be adversely affected and the manner in which the interest may be adversely affected by the activities. This proposal will be reviewed in accordance with 33 CFR 320-332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders. Interested parties are invited to state any objections they may have to the proposed work. A DA permit may be required under Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act for activities in conjunction with the establishment of mitigation banks under the UMBI. If required, the proposal would be evaluated for compliance with the terms and conditions of Nationwide Permit No. 27 for Aquatic Habitat Restoration, Establishment, and Enhancement Activities or, if determined necessary, an individual DA permit pursuant to the procedures outlined at 33 CFR 325.2 would be required.  For individual DA permits, the decision whether to approve mitigation banks under the UMBI will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed activities on the public interest. That decision will reflect the national concern for both protection and utilization of important resources.  The benefit that reasonably may be expected to accrue from the proposals must be balanced against their reasonably foreseeable detriments.  All factors that may be relevant to the proposals will be considered including the cumulative effects thereof; of those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.  Any person may submit cumulative impact information, which is substantive and specifically associated with the proposed actions.  In addition, the evaluation of the impact of the activities on the public interest will include application of the guidelines promulgated by the Administrator, USEPA, under the authority of Section 404(b) of the Clean Water Act.  Written statements on these factors received in this office on or before the expiration date of this Public Notice will become a part of the record and will be considered in the final determination.

 

SOLICITATION OF COMMENTS: The Corps 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 this proposed mitigation bank.  For accuracy and completeness of the administrative record, all data in support of or in opposition to the proposed work should be submitted in writing setting forth sufficient detail to furnish a clear understanding of the reasons for support or opposition.  Any comments received will be considered by the Corps to determine whether to approve, modify, condition or deny 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.

 

CLOSE OF COMMENT PERIOD: All comments pertaining to this Public Notice must reach this office on or before the close of the comment period listed on page one of this Public Notice.  If no comments are received by that date, it will be considered that there are no objections.  Comments and requests for additional information should be submitted to:

 

U.S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice No. LRH-2014-00392-LKR

502 Eighth Street

Huntington, West Virginia 25701-2070.

 

Please note the comments received in response to this Public Notice become part of our administrative record and, as such, are available to the public under provisions of the Freedom of Information Act.  Thank you for your interest in our Nation's water resources.  If you have any questions concerning this Public Notice, please contact Mr. Justin Elkins at the above address, by telephone at (304) 399-5271, or by email at justin.m.elkins@usace.army.mil.